By Liz McCaman Taylor, Manasi Raveendran, and Vidhi Bamzai*
Federal agencies are vital tools for the execution of legislation enacted by Congress, despite frequent condemnation as a mere means of presidential overreach into the legislative process. The Supreme Court of the United States recognizes Congress’ power to establish federal agencies under Article I of the Constitution, along with the powers, duties, and functions of those agencies.[1]
In 1984, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. formally established a legal doctrine that allowed Congress to empower agencies to implement and execute legislation.[2] Chevron had been the guiding principle of administrative law for 40 years. Under Chevron, the Supreme Court established a form of judicial deference called “Chevron deference,” which granted executive agencies wide latitude to interpret legislation that it had been tasked to execute. In June 2024, after years of attempts to chip away at agencies’ authority to conduct their work, the Supreme Court issued its long-awaited opinion in Loper Bright Enterprises v. Raimondo, overturning Chevron deference and ending administrative law as we then knew it.[3]
Without the judicial guideposts of Chevron deference, it may become more difficult for agencies to execute Congressional charges. Agencies’ work is likely to become more challenging given this presidential administration’s dedication to restricting the power of the administrative state, especially in the reproductive rights space.
Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade’s protection of abortion as a federal Constitutional right, administrative agencies undertook much of the federal work to protect and expand access to reproductive care.[4] Without Chevron, the authority of many of these agencies to execute minute elements of legislation, which may not have been directly addressed by Congress, will be in question. Federal agencies may be unable or unwilling to effectively and efficiently advance reproductive rights, including access to abortions, in part because their decisions will likely be subject to judicial interference.
Although the loss of Chevron deference is a devastating blow, it is not the end of the administrative state or of administrative advocacy to protect and advance reproductive freedom. Through innovative techniques and strategy, advocates can continue to successfully fight for reproductive rights.
I. Federal Agencies: The Executive Branch Backbone
Federal agencies are the mechanism through which federal laws are implemented and enforced. Congress can direct an agency to implement and enforce laws that fall under that agency’s specific expertise. In simple terms, Congress makes and enacts laws. Agencies take those laws and promulgate rules to implement the laws passed by Congress. Once implemented, agencies can also enforce those rules. Note that agencies do not have free rein to conduct their work. Rather, they are subject to checks and balances like any other part of the federal government and are ultimately accountable to the President and to Congress.
Because agencies typically consist of dedicated subject matter experts who can provide reasonable and appropriate interpretations of Congressional statutes, Chevron deference was essential to the work of federal agencies. Under Chevron, agencies had the authority to make reasonable interpretations where legislative delegation on a particular issue or question was implicit. The reasonable interpretation standard granted agencies wide berth to address issues that fell under their purview, making judicial clearance unnecessary. For example, agencies such as the Department of Health and Human Services (“HHS”) aided in the implementation of the Affordable Care Act. Without HHS, it would have been impossible for Congress and the President to implement the specific and minute details of this sweeping reform.
Since Dobbs, agencies have ensured the safety and expansion of reproductive rights. Although the federal Constitutional right to an abortion was overturned by Dobbs, agencies can help to protect existing access to reproductive care while ensuring that those who seek care are safe from investigation and prosecution. Agencies can also expand access to care for eligible individuals through the following non-exhaustive avenues:[5]
- The Food and Drug Administration (“FDA”) within HHS regulates reproductive and sexual health drugs including abortion medications.[6] The FDA also regulates birth control and recently approved OPill, a nonprescription, daily oral contraceptive, which may be sold over the counter.[7]
- HHS’ Office for Civil Rights (“OCR”) implements and enforces federal laws that keep sensitive reproductive health information private and secure.[8] Under OCR regulations, private health information could not be shared with law enforcement to prosecute someone for seeking reproductive health care (these regulations have since been overturned in litigation).[9]
- Within HHS, the Assistant Secretary for Technology Policy (“ASTP”)/Office of the National Coordinator for Health Information Technology (“ONC”) develops regulations which outline how health care information crosses state lines.[10] ONC has proposed and finalized regulations that allow data to reach the appropriate parties and protect it from misuse.[11] These regulations remain in effect.
- The Department of Veterans Affairs (“VA”) provides abortion access for veterans. In March 2024, the VA finalized a rule that allowed veterans to receive abortion counseling and clarified that veterans’ medical benefits can include abortion in certain circumstances.[12] However, the Trump administration’s VA has since proposed in August 2025 to reverse the abortion access policy; a new final rule remains pending.[13]
Agencies impact the lives of many. Prior to President Trump’s inauguration on January 20, 2025, it was anticipated that agencies would continue to operate post-Chevron, with the expectation that many important policies, especially those related to reproductive rights issues, may be subject to interrogation by a highly politicized Court.[14] However, executive actions and statements made by the President and his advisors demonstrate that the mere existence of agencies is no longer guaranteed. President Trump and his administration have introduced mass firings and funding cuts, including the total dismantling of the U.S. Agency for International Development (“USAID”).[15] The consequences of these actions are ongoing. While rules and regulations finalized under previous administrations are always at risk in a new administration, these unprecedented changes make the risks greater and less predictable.
II. Post-Chevron Case Law
Loper Bright is sure to spark legal challenges to cases that applied Chevron deference and to agency regulations more generally. The Biden administration finalized several rules that help expand access to abortion and protect reproductive health data.[16] The end of Chevron deference puts policies like these at risk because anti-abortion lawyers and courts may feel secure and motivated that judicial momentum leans toward viewing progressive agency actions skeptically. Loper Bright has already been cited in ongoing litigation regarding the Equal Employment Opportunity Commission’s (“EEOC’s”) rule implementing the Pregnant Workers Fairness Act (“PWFA”), the Office for Civil Rights’ rule providing reproductive health privacy protections under the Health Information Portability and Accountability Act (“HIPAA”), and the Office of Population Affairs’ (“OPA’s”) rule governing the Title X Family Planning Program, all rules promulgated by the Biden Administration.[17] The Biden administration also proposed, but did not finalize, several rules to expand access to reproductive health care, including two rules expanding contraceptive coverage.[18] Although the Biden administration’s reason for withdrawing the rules is not public, the post-Chevron landscape, along with the changing presidential administration, clearly put contraceptive access policies at increased risk.
A. Pregnant Workers Fairness Act
The EEOC rule entitles workers to a range of pregnancy-related accommodations, including time off for childbirth, abortion, miscarriage, and fertility treatments.[19] Shortly after the rule’s finalization, Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia launched a legal challenge under the Administrative Procedure Act (“APA”).[20]
Pre-Loper Bright, the United States District Court for the Eastern District of Arkansas ultimately held that the complaint should be dismissed, in part because the EEOC was entitled to Chevron deference. However, the District Court acknowledged “[t]hat legal rule may change soon” under Loper Bright.[21] After Loper Bright, plaintiffs appealed the District Court’s decision, and there is a real risk that the fall of Chevron may change the way that courts view the legitimacy of the EEOC’s rulemaking.[22]
B. HIPAA
Loper Bright has also been cited in ongoing litigating regarding the 2024 HIPAA Privacy Rule, which provides heightened protections for reproductive health data.[23] Four separate lawsuits have been filed against the rule, three of which cite to Loper Bright in filings. In Tennessee’s case against the rule, the state cites Loper Bright to argue that HHS lacks clear authority to craft the disclosure requirements in the rule.[24] Similarly in Texas’ case against the rule, the state argues that HHS is entitled to no deference under Loper Bright.[25]
Ultimately, the rule was overturned in a Texas case brought by an individual, Dr. Carmen Purl, an anti-abortion physician in Texas who claimed that the 2024 Privacy Rule prevents her from making child abuse reports to state authorities when young people have accessed abortion or gender-affirming care.[26] In that case, the court ordered the parties to file supplemental briefing explaining how Loper Bright affected HHS’ authority to issue the 2024 Rule.[27] In their Motion for Summary Judgment, plaintiffs cite Loper Bright to argue that HHS is not entitled to deference on its interpretation of state public health disclosure limits that supports the 2024 Rule.[28] Of note, this case was filed in the Amarillo Division of the Northern District of Texas, where the majority of cases are assigned to Judge Matthew Kacsmaryk, an anti-abortion Trump appointee.[29] Judge Kacsmaryk seemingly agreed with plaintiffs when he vacated the 2024 HIPAA Privacy Rule and dealt a blow to reproductive rights, ruling in part based on Loper Bright.[30]
C. Title X Family Planning Program
Title X is a federal grant program established under the Public Health Service Act in 1970.[31] Title X was signed into law by President Nixon and is funded annually by Congress through the appropriations process; in fiscal year 2025, Congress appropriated $286.5 million to HHS for the administration of Title X.[32] The grants are issued by HHS’ OPA and support clinical family planning services, patient and public education, research, and training for family planning providers and staff.[33] Title X “is the only dedicated source of federal funding for domestic family planning” and “is critical to maintaining access to services,” particularly for low-income and uninsured people.[34]
In 2019, the Trump administration finalized a new rule governing Title X. The rule “substantially diminished the Title X family planning network by disqualifying family planning clinics with co-located abortion services and disallowing the provision of abortion referrals to clients that wanted them.”[35] As a result, the number of clients served fell from 3.9 million to 1.5 million from 2018 to 2020, with an estimated 63% of the reduction (approximately 1.5 million clients) attributed directly to the 2019 rule restrictions.[36]
In 2021, the Biden administration finalized a replacement regulation which restored many of the aspects of the program to their pre-2019 state. The replacement regulation reinstated the ability to co-locate abortion services, the requirement to provide nondirective counseling and referrals for all family-planning options (including abortion), and adolescent confidentiality protections that encourage, but do not require, parental involvement.[37]
Multiple states with severe abortion restrictions and other anti-abortion intervenors filed suit against the Biden administration’s 2021 rule under the APA, objecting particularly to reinstatement of the requirement to provide nondirective counseling and referrals for abortion. In one such case, Oklahoma v. Department of Health and Human Services, in a brief filed by the American Association of Pro-Life Obstetricians & Gynecologists, the Christian Medical & Dental Associations, the Catholic Medical Association, and the National Association of Catholic Nurses, amici foreshadowed that “Chevron may not remain good law for long,” in which case the “Court should employ traditional tools of statutory interpretation and hold that the referral requirement” was illegal.[38] The Tenth Circuit disagreed, finding that the Title X statute was silent on the issue of counseling and referrals; accordingly, the Tenth Circuit deferred to the Supreme Court holding in Rust v. Sullivan, which held that HHS could enact requirements on counseling and referrals.[39] Notably, Rust v. Sullivan applies the two-part Chevron test. In a footnote, the Tenth Circuit caveats that despite Chevron being overturned, the Rust v. Sullivan holding should stand because Loper Bright clarified that it was not “call[ing] into question prior cases that [had] relied on the Chevron framework.”[40]
In its emergency appeal to the Supreme Court, Oklahoma took issue with the Tenth Circuit’s (non)application of Loper Bright, requesting “either a grant of certiorari or a remand to evaluate the case more fully in light of Loper Bright.”[41] Oklahoma described the 2021 Title X rule as part of an “expansive view of the federal bureaucracy’s rulemaking power” that “is inconsistent with this Court’s recent decision [in Loper Bright].”[42] The Supreme Court ultimately denied the writ, but three justices, Justices Thomas, Alito, and Gorsuch, noted that they would have granted the application.[43]
Oklahoma subsequently asked the Supreme Court to review the case on the merits; in its petition for review, Oklahoma again cited Loper Bright to support its claim that “the Tenth Circuit’s perfunctory analysis is likely incorrect.”[44] This time the Court granted the writ, vacated the lower court judgment, remanded the case for further consideration, and ordered HHS to pay Oklahoma attorneys’ fees.[45] As of publication, litigation is ongoing. Additionally, litigation against the 2021 Title X rule continues in Tennessee, where the state argues that the rule is contrary to the law that created Title X.[46] Notably, T. Elliot Gaiser, former Ohio Solicitor General and current Assistant Attorney General in the Department of Justice’s Office of Legal Counsel, filed an amicus brief in this case in support of Tennessee’s petition for a rehearing in the Sixth Circuit; the amicus specifically asks the full circuit court to “correct the panel’s misreading of Loper Bright.”[47] While the Sixth Circuit has been steadfast that “Loper Bright declined to ‘call into question prior cases that relied on the Chevron framework,’” Tennessee has gone so far as to petition the Supreme Court for a writ of certiorari that extensively cites Loper Bright.[48] While the writ has not been granted, it is likely (given the writ that was granted in the Oklahoma Title X litigation) that more APA litigation on a number of longstanding health care issues, including abortion, contraceptive access, and gender-affirming care, will continue in the second Trump administration.[49] Furthermore, as litigation proceeds, the Trump administration is moving forward with a new Title X rule, which will further complicate the role of Loper Bright in administering the Title X program.[50]
III. Post-Chevron Policy & Advocacy
The post-Chevron era, much like the post-Roe era, is full of legitimate fears and unknowns. As all three branches of government grapple with their role in policymaking, advocates can leverage several legal tools to defend, protect, and advance reproductive freedom.
A. Congress
Post-Chevron, it is more critical than ever that Congress pass clear legislation. In fact, Loper Bright recognizes that Congress can expressly delegate to an agency the authority to give meaning to a particular statutory term.[51] According to the Court, in these situations, “courts must respect the delegation, while ensuring that the agency acts within it.”[52]
There are already multiple statutes impacting reproductive rights that contain delegations of authority. For example, the Medicaid Act governs the Medicaid program, which provides health insurance coverage to low-income people and is the largest payer of reproductive health coverage in the United States, paying for 75% of publicly-funded family planning care and pregnancy care for 41.3% of people giving birth.[53] The statutes governing the program delegate multiple authorities to the HHS Secretary, such as generally publishing rules and regulations and expressly approving state Medicaid plans.[54]
Similarly, the Title X statutes authorize the HHS Secretary to expressly make grants and enter into contracts, as well as generally promulgate regulations.[55] Likewise, HIPAA authorizes the HHS Secretary to promulgate regulations containing privacy standards for individually identifiable health information.[56] These delegations may be important safeguards for these programs when challenged under Loper Bright; the more specific the delegation, the more likely it is to withstand an APA challenge.[57]
In this vein, it would behoove advocates to work closely with Congressional allies to ensure that statutes are clearly and directly written to give express authority to federal agencies for specific implementation and enforcement tasks. Advocates should also encourage Congress to meet with agencies and receive detailed technical assistance before passing legislation, to ensure that any bill is specific enough for agency staff to implement. It must be emphasized that Congress has neither the expertise nor the time to do the everyday work of implementation and enforcement.
Express delegations of authority give agencies more room to exercise their judgment and expertise on issues that fall under their direct purview.However, given that both chambers of Congress, and the Executive Branch, are under Republican control, it is important to note that there are risks of express delegation. Congress could choose to adopt specific language that could harm access to reproductive care, and these delegations could withstand APA challenges because of their specificity. That risk is all the more reason for advocates to work closely with allies who can use legislative and political tools to prevent harmful delegations of authority.
B. Agency Policymaking
Loper Bright is alarming for federal agency work, but not a death knell. The factual determinations made by federal agencies and their application of law to these facts are still entitled to deference, unless their actions are arbitrary and capricious. The deference that was revoked under Loper Bright related only to an agency’s interpretation of the law. Federal agencies can still exercise discretion; however, when exercising discretion, agencies must take great care to explicitly tie their policies and actions to the words of an authorizing statute and avoid justifying policies with selective references to the statute.
In the Trump administration’s recent notice about the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”), HHS cited Loper Bright to claim that the “Department has no power to override Congress’s will, expressed in the clear statutory text of PROWRA.”[58] Based on this claim and based on unclear legislative history, HHS reversed nearly 30 years of consistent statutory legal interpretation about who would be able to access critical health care programs.
As federal agencies promulgate regulations and guidance post-Chevron, like the PRWORA notice, it is vital that advocates continue to engage in the rule-making process. Interested members of the public should submit comments on proposed policies to federal agencies during notice and comment periods. Additionally, there may be circumstances where an agency issues an “interim final rule.” It is especially important for advocates to submit comments during the post-promulgation period of interim final rules as these rules immediately carry the full effect and weight of the law.[59]
Public comments build a strong administrative record in support of or against the commenter’s point of view, which is crucial evidence in potential litigation.
C. Judiciary
As discussed above in Section II, litigation against federal agencies under Loper Bright has already begun and will certainly continue. However, as demonstrated by the Title X cases, Loper Bright does not guarantee that federal agency action will fall. In fact, Loper Bright itself says that “[c]areful attention to the judgment of the Executive Branch may help inform that inquiry.”[60] Additionally, Skidmore v. Swift & Co. remains good law, holding
that agency interpretations based on specialized experience can inform court judgments.[61] Some longstanding statutes and programs, like Medicaid, have a significant body of case law applying Skidmore behind them, instilling hope that courts will continue to give respect to the interpretations of public health experts.[62]
Reproductive health, rights, and justice advocates can also think proactively about how to use Loper Bright to their advantage in litigation. Particularly under an administration that is hostile to reproductive rights, Loper Bright may present an “sword” to challenge federal actions that illegally restrict abortion, contraception, in vitro fertilization, or maternal health care.
IV. Conclusion
The overruling of Chevron deference is not a direct attack on reproductive rights, yet it does present new opportunities to whittle away basic rights, particularly reproductive rights. Congressional interference or micromanagement, coupled with increased administrative delays and litigation, will inevitably be weaponized to attack a host of evidence-based reproductive health care practices. Although attacks on reproductive rights are nothing new, the public health crisis created by the overturning of Roe v. Wade will only worsen if experts in federal agencies are unable to regulate in their areas of expertise on important reproductive health programs like Medicaid and Title X.
Nonetheless, advocates must not abandon administrative advocacy. The post-Chevron environment presents an opportunity to think creatively about novel policy and litigation approaches to protect and expand federal reproductive rights. If the reproductive health, rights, and justice movements
can adopt new strategies to ensure that rulemaking is well-supported then the movement will be well-positioned to continue fighting for fundamental reproductive rights.
* Liz McCaman Taylor is a Senior Federal Policy & Advocacy Counsel with the Center for Reproductive Rights (“Center”). Manasi Raveendran and Vidhi Bamzai are Federal Policy & Advocacy Counsels with the Center. Founded in 1992, the Center is the only global legal advocacy organization dedicated to reproductive rights, and its litigation and advocacy has played a key role in expanding access to reproductive health care around the world.
[1] See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 500 (2010) (“Congress has plenary control over the salary, duties, and even existence of executive offices.”); Myers v. United States, 272 U.S. 52, 129 (1926) (“To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed and their compensation . . . .”).
[2] See 467 U.S. 837, 843–44 (1984) [hereinafter “Chevron”].
[3] See 144 S. Ct. 2244, 2272–73 (2024) [hereinafter “Loper Bright”].
[4] See 142 S. Ct. 2228, 2242 (2022) [hereinafter “Dobbs”].
[5] It should be noted that agencies usually reflect the platform and policies of the current presidential administration. Samira Damavandi, Anna Bernstein & Amy Friedrich-Karnik, A Guide to US Federal Agencies and Their Impact on Sexual and Reproductive Health and Rights, Guttmacher Inst., https://www.guttmacher.org/fact-sheet/guide-us-federal-agencies-and-their-impact-sexual-and-reproductive-health-and-rights [https://perma.cc/5VPS-45HB].
[6] See, e.g., Information about Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation, U.S. Food & Drug Admin.(Jan. 17, 2025), https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/information-about-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation [https://perma.cc/EP33-3DUF].
[7] Supplement Approval Letter to HRA Pharma, U.S. Food & Drug Admin. (July 13, 2023),https://www.accessdata.fda.gov/drugsatfda_docs/appletter/2023/017031Orig1s041ltr.pdf [https://perma.cc/FU7Z-E9XZ].
[8] About Us, Off. for C.R., U.S. Dep’t of Health & Hum. Servs. (Dec. 17, 2024), https://www.hhs.gov/ocr/about-us/index.html [https://perma.cc/3HGT-BW2G]; see, e.g., 45 C.F.R. pts. 160, 164 (commonly known as the HIPAA Privacy, Security, Breach Notification, and Enforcement Rules).
[9] HIPAA Privacy Rule to Support Reproductive Health Care Privacy, 89 Fed. Reg. 32976, 33063 (Apr. 26, 2024) (codified at 45 C.F.R. pts. 160, 164) [hereinafter HIPAA Privacy Rule]. But see Purl v. Dep’t of Health and Hum. Servs., No. 2:24-cv-00228-Z (N.D. Tex. July 3, 2025) (vacating the rule).
[10] Cong. Rsch. Serv., IF12352, Assistant Secretary for Technology Policy/Office of the National Coordinator for Health Information Technology (ASTP/ONC) 1 (2025).
[11] See 45 C.F.R. pt. 171.
[12] 38 C.F.R. §§ 17.38(c), 17.272(a)(58).
[13] 90 Fed. Reg. 36415 (Aug. 4, 2025).
[14] What does SCOTUS’s “Chevron Deference” ruling mean for the future of federal reproductive rights?, Ctr. for Reprod. Rights (Sept. 9, 2024), https://reproductiverights.org/scotus-chevron-deference-reproductive-rights/ [https://perma.cc/UYL5-7CSV]; see also Kate Blackwood, A politicized Supreme Court meets a new moment for America, Cornell Chron. (Nov. 26, 2024), https://government.cornell.edu/news/politicized-supreme-court-meets-new-moment-america [https://perma.cc/U3YG-47V2].
[15] Repro Red Flags: Trump’s First 100 Days, Ctr. for Reprod. Rights 5–6, 11, 13 (Apr. 2025), https://reproductiverights.org/wp-content/uploads/2025/04/100days-RedFlags.pdf [https://perma.cc/J6GJ-6WRS].
[16] See, e.g., 38 C.F.R. §§ 17.38(c), 17.272(a)(58); HIPAA Privacy Rule, supra note 9.
[17] See supra Part II.A–C; 42 U.S.C. § 2000gg et seq.
[18] See Enhancing Coverage of Preventive Services Under the Affordable Care Act, 89 Fed. Reg. 85750 (Oct. 28, 2024); Coverage of Certain Preventive Services Under the Affordable Care Act, 88 Fed. Reg. 7236 (Feb. 2, 2023).
[19] See 29 C.F.R. § 1636 (2024).
[20] Tennessee v. Equal Emp. Opportunity Comm’n, 737 F.Supp.3d 685 (E.D. Ark. 2024). The Administrative Procedure Act (“APA”) is a federal statute that establishes the process and procedures for agency rulemaking and adjudication, along with standards for judicial review of final agency actions. Todd Garvey, A Brief Overview of Rulemaking and Judicial Review, Cong. Rsch. Serv. (Mar. 27, 2017), https://crsreports.congress.gov/product/pdf/R/R41546 [https://perma.cc/S3DU-L86H].
[21] Tennessee v. Equal Emp. Opportunity Comm’n, 737 F.Supp.3d at 699.
[22] In a separate case, a district court judge vacated under the APA the portion of the EEOC rule providing abortion accommodations but did not provide any noteworthy citations to Loper Bright. Louisiana v. Equal Emp. Opportunity Comm’n, No. 6:24-cv-00647 (W.D. La. May 21, 2025).
[23] See HIPAA Privacy Rule, supra note 9.
[24] Plaintiff State’s Notice of Supplement Authority in Support of Their Motion for Summary Judgment and Preliminary Relief at 46, Tennessee v. U.S. Dep’t of Health and & Hum. Servs., No. 3:25-cv-00025 (E.D. Tenn. June 24, 2025); Plaintiff’s Motion for Summary Judgment and Preliminary Relief at 13, Tennessee v. U.S. Dep’t of Health & Hum. Servs., No. 3:25-cv-00025-KAC-JEM (E.D. Tenn. Feb. 7, 2025).
[25] Texas’s Motion for Partial Summary Judgment at 26, Texas v. U.S. Dep’t of Health & Hum. Servs., No. 5:24-cv-00204 (N.D. Tex. June 9, 2025).
[26] See Memorandum Opinion and Order at 1, 10, 46, Purl v. Dep’t of Health and Hum. Servs., No. 2:24-cv-00228-Z (N.D. Tex. June 18, 2025).
[27] Plaintiffs’ Motion for Summary Judgment at 17, Purl v. U.S. Dep’t of Health & Hum. Servs., No. 2:24-cv-00228-Z (N.D. Tex. Jan. 17, 2025).
[28] Id. at 23.
[29] Anna Stolley Persky, Forum shopping happens, but has the Northern District of Texas gone too far?, ABA J. (Aug. 1, 2024, 1:00 CT), https://www.abajournal.com/magazine/article/forum-shopping-happens-but-has-the-northern-district-of-texas-gone-too-far [https://perma.cc/2ER9-A6ZJ].
[30] Purl v. U.S. Dep’t of Health & Hum. Servs., No. 2:24-cv-00228-Z (N.D. Tex. July 3, 2025) (vacating the rule). Note that HIPAA still allows states to enact stricter privacy laws than the HIPAA “floor,” and advocates may consider pivoting to state advocacy on “shield laws” and other consumer privacy laws to safeguard reproductive health data. 45 C.F.R. § 160.203(b); Interstate Shield Laws, Ctr. for Reprod. Rights (June 26, 2024), https://reproductiverights.org/interstate-shield-laws/ [https://perma.cc/6H7B-VE7G].
[31] See Family Planning Services and Population Research Act of 1970, Pub. L. No. 91-572, 84 Stat. 1504 (1970).
[32] Continuing Appropriations and Extensions Act, 2025, Pub. L. No. 119-4, 139 Stat. 10, 11 (2025). Note that this is level funding for the past decade, not nearly the $1.38 billion estimated to fully fund the program. See Fact Sheet: Challenges to the Title X Program, Guttmacher Inst. (Feb. 2025), https://www.guttmacher.org/fact-sheet/challenges-title-x-program [https://perma.cc/9FQ6-PQY6].
[33] A Review of the HHS Family Planning Program: Mission, Management, and Measurement of Results 2 (Butler Stith & Clayton Wright eds., 2009).
[34] See Nat’l Family Planning & Reprod. Health, Fact Sheet: Title X Family Planning (Jan. 2023), https://www.nationalfamilyplanning.org/file/Title-X-101-January-2023-final_2.pdf [https://perma.cc/GEJ2-7SBG].
[35] See 42 C.F.R. § 59 (2021); see also Brittni Frederiksen, Ivette Gomez & Alina Salganicoff, Rebuilding Title X: New Regulations for the Federal Family Planning Program, KFF (Nov. 3, 2021), https://www.kff.org/womens-health-policy/issue-brief/rebuilding-title-x-new-regulations-for-the-federal-family-planning-program/ [https://perma.cc/83KR-GW2P].
[36] See Frederiksen, Gomez & Salganicoff, supra note 34.
[37] See 42 C.F.R. § 59 (2021).
[38] See Brief of Am. Ass’n of Pro-Life Obstetricians & Gynecologists et al. as Amici Curiae Supporting Appellant, Oklahoma v. U.S. Dep’t of Health & Hum. Servs., 107 F.4th 1209 (10th Cir. 2024) (No. 24-6063), 2024 WL 1978312 at *7. The Center for Reproductive Rights also filed an amicus in this case, along with ACLU, ACLU of OK, and the Lawyering Project in support of the defendants, though its brief does not discuss Chevron or Loper Bright. See Brief of Am. C.L. Union et al. as Amici Curiae Supporting Appellees, Oklahoma v. U.S. Dep’t of Health & Hum. Servs., 107 F.4th 1209 (10th Cir. 2024) (No. 24-6063), 2024 WL 2702171.
[39] See 107 F.4th at 1225 n.16 (quoting Loper Bright, 144 S. Ct. at 2253).
[40] Id; see also Tennessee v. Becerra, 117 F.4th 348, 364–65 (6th Cir. 2024), noting that while Loper Bright opens the door to new challenges based on new agency actions interpreting statutes, it forecloses new challenges based on specific agency actions that were already resolved via Chevron deference analysis. Even applying Loper Bright, the Court concluded that the under the best meaning of the Title X statute it permits neutral, non-directive counseling and referrals, including for abortion care. Id.
[41] Emergency Application for Writ of Injunction or in the Alternative for Stay of Agency Action Relief, Oklahoma v. U.S. Dep’t of Health & Hum. Servs., 145 S. Ct. 110 (Aug. 5, 2024) (No. 24A146), 2024 WL 3729285 at *3.
[42] Id. at *20.
[43] See 145 S. Ct. 110 (2024).
[44] Petition for Writ of Certiorari at 22, Oklahoma v. U.S. Dep’t of Health & Hum. Servs., 145 S. Ct. 110 (2025) (No. 24-437), 2024 WL 4558378.
[45] Oklahoma v. U.S. Dep’t of Health & Hum. Servs., 145 S. Ct. 110 (2025).
[46] State and Federal Reproductive Rights and Abortion Litigation Tracker, KFF (updated Oct. 7, 2025), https://www.kff.org/womens-health-policy/litigation-involving-reproductive-health-and-rights-in-the-federal-courts/ [https://perma.cc/LKZ7-Y6US].
[47] Brief of Amicus Curiae States of Ohio & 21 Other States in Support of Appellants’ Petition for Rehearing En Banc at 1, Tennessee v. Becerra, No. 24-5220 (6th Cir. Oct. 16, 2024).
[48] Becerra, 117 F.4th at 366; Petition for Writ of Certiorari at 1, 11, 16–17, 20, Tennessee v. Kennedy, No. 25-162 (Aug. 7, 2025).
[49] See, e.g., Becerra, 117 F.4th at 348.
[50] Proposed Rule: Compliance with Title X Statutory Program Integrirty [sic] Requirements, RIN 0937-AA15, Off. of Info. & Regul. Affairs, Off. of Mgmt. & Budget (Spring 2025), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202504&RIN=0937-AA15[https://perma.cc/ABB9-VVNY]. Notably, a Working Group made up of twenty Senate Republicans released a report focusing on legislative proposals in response to Loper Bright that would limit and prevent delegation, discretion, and deference to Executive Branch agencies. Specifically, the Working Group notes that the Title X rule has thus far been upheld under both Chevron and Loper Bright and recommends considering expansive Congressional Review Act (CRA) process or further litigation to ensure the demise of abortion-inclusive, non-directive counseling. Eric Schmitt, The Post-Chevron Working Group Report 3, 12–14, 18 (2025), https://www.schmitt.senate.gov/wp-content/uploads/2025/06/Post-Chevron-Working-Group-Report-V2.pdf [https://perma.cc/WD95-SNRQ].
[51] See 144 S. Ct. at 2263.
[52] Id. at 2273.
[53] Medicaid and Reproductive Health, Planned Parenthood (last updated May 2025), https://www.plannedparenthoodaction.org/issues/health-care-equity/medicaid-and-reproductive-health [https://perma.cc/67BX-74QR]; NVSS – Birth Data, Nat’l Ctr. for Health Stat. (last updated Aug. 27, 2025), https://www.cdc.gov/nchs/nvss/births.htm [https://perma.cc/T77U-DUCY].
[54] See 42 U.S.C. §§ 1302, 1396-1.
[55] See id. §§ 300, 300a, 300a-1, 300a-2, 300a-3, 300a-4.
[56] See Pub. L. No. 104-191 § 264(c)(1).
[57] Note that this delegation was not sufficient to protect the 2024 HIPAA Privacy Rule. See Memorandum and Order, supra note 25.
[58] Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA); Interpretation of “Federal Public Benefit,” 90 Fed. Reg. 31232 (July 14, 2025).
[59] A Guide to the Rulemaking Process, Off. of the Fed. Reg. 9 (Sep. 2023), https://uploads.federalregister.gov/uploads/2013/09/The-Rulemaking-Process.pdf [https://perma.cc/XJV2-7FXK].
[60] 144 S. Ct. at 2273.
[61] Id. at 2262, 2267.
[62] See, e.g. Sarah Somers, Nat’l Health Law Prog., A Medicaid Advocate’s Guide to Deference 6–8 (Jan. 2008), https://healthlaw.org/wp-content/uploads/2018/09/advocates-guide-to-deference.pdf [https://perma.cc/A49E-2TCE].