Full opinion text
I. BACKGROUND A. Statutory and Regulatory Background 1. Title X The Public Health Service Act ("PHSA"), an expansive statutory scheme that consolidated existing public health laws and established various agencies and grant programs to support health care and research, was enacted in 1944. In 1970, Congress amended the PHSA to add "Title X-Population Research and Voluntary Family Planning Programs." Pub. L. No. 91-572, § 6, 84 Stat. 1504, 1506-08 (1970) (codified at 42 U.S.C. §§ 300 - 300a-6 ). Title X authorizes the Secretary of HHS "to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services." 42 U.S.C. § 300(a). Such grants and contracts must "be made in accordance with such regulations as the Secretary may promulgate." Id. § 300a-4. Congress explained that its purpose in enacting Title X was: a. to assist in making comprehensive voluntary family planning services readily available to all persons desiring such services; b. to coordinate domestic population and family planning research with the present and future needs of family planning programs; c. to improve administrative and operational supervision of domestic family planning services and of population research programs related to such services; d. to enable public and nonprofit private entities to plan and develop comprehensive programs of family planning services; e. to develop and make readily available information (including educational materials) on family planning and population growth to all persons desiring such information; f. to evaluate and improve the effectiveness of family planning service programs and of population research; [and] g. to assist in providing trained manpower needed to effectively carry out programs of population research and family planning services.... Pub. L. No. 91-572 § 2, 84 Stat. 1504. Per Section 1008 of the PHSA, "[n]one of the funds appropriated under [Title X] shall be used in programs where abortion is a method of family planning." 42 U.S.C. § 300a-6. 2. The 1971 Regulations, 1981 Guidance, 1988 Regulations, and Rust v. Sullivan Consistent with Section 1008, HHS has never permitted Title X grantees to use Title X funds to perform or subsidize abortions. See 42 C.F.R. §§ 59.5(a)(5), 59.9 (1986). However, the agency had long interpreted Title X to allow grantees to provide pregnant women with nondirective counseling and referrals about their medical options, including abortion. The initial regulations, issued in 1971, stated that Section 1008 only required that a Title X "project will not provide abortions as a method of family planning." 36 Fed. Reg. 18,465, 18,466 (1971). "During the mid-1970s, HHS General Counsel memoranda made a further distinction between directive ('encouraging or promoting' abortion) and nondirective ('neutral') counseling on abortion, prohibiting the former and permitting the latter." Nat'l Family Planning & Reprod. Health Ass'n, Inc. v. Sullivan , 979 F.2d 227, 229 (D.C. Cir. 1992). This distinction was reaffirmed in 1981, when HHS issued guidelines "requir[ing] nondirective 'options counsleling' [sic ] on pregnancy termination (abortion), prenatal care, and adoption and foster care when a woman with an unintended pregnancy requests information on her options, followed by referral for these services if she so requests." 53 Fed. Reg. 2922, 2923 (1988). Thus, early on, HHS distinguished nondirective counseling (and referrals) from the actual provision of abortion services, permitting the former but prohibiting the latter. That policy was reversed in 1988 when HHS promulgated new regulations to provide " 'clear and operational guidance' to grantees about how to preserve the distinction between Title X programs and abortion as a method of family planning." Id. at 2923-24. The term "family planning" was redefined to encompass solely "preconceptional counseling, education, and general reproductive health care," while expressly excluding "pregnancy care (including obstetric or prenatal care)." 42 C.F.R. § 59.2 (1989). The thrust of the 1988 regulations was reflected in three main provisions. First, they provided that a "Title X project may not provide counseling concerning the use of abortion as a method of family planning or provide referral for abortion as a method of family planning," even in response to a client's specific request. Id. § 59.8(a)(1). Second, the regulations prohibited a Title X project from engaging in any activities that "encourage, promote or advocate abortion as a method of family planning." Id. § 59.10(a). Third, Title X projects were required to be "physically and financially separate" from prohibited abortion activities. Id. § 59.9. The regulations enumerated nonexclusive factors for the Secretary of HHS to consult in determining whether the separation requirement was met, including the existence of separate accounting records and separate personnel, and the degree of physical separation of the project from facilities for prohibited activities. Id. The regulations made clear that "[m]ere bookkeeping separation of Title X funds from other monies is not sufficient." Id. The 1988 regulations were subject to legal challenge, and were upheld by the Supreme Court against a facial challenge by Title X grantees in Rust v. Sullivan , 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). The Rust plaintiffs objected to the regulations on statutory and constitutional grounds. They argued that the regulations were arbitrary and capricious and exceeded the Secretary's authority under Title X, that the regulations' proscription of abortion counseling and referral violated the First Amendment, and that the regulations violated a woman's Fifth Amendment right to choose whether to terminate her pregnancy. Id. at 183, 192, 201, 111 S.Ct. 1759. The Supreme Court found none of these claims availing. It rejected the plaintiffs' first statutory claim after applying Chevron deference to the Secretary's construction of Title X. The Court determined that statutory text and legislative history of Title X were ambiguous regarding abortion counseling and referral as well as the separation of Title X and non-Title X services. Id. at 184, 111 S.Ct. 1759 ("The language of § 1008-that '[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning'-does not speak directly to the issues of counseling, referral, advocacy, or program integrity."). In the face of that ambiguity, the Court decided that the Secretary's construction of the statute "to require a ban on counseling, referral, and advocacy within the Title X project" was reasonable, noting that the "broad language" of "§ 1008 prohibits the use of Title X funds 'in programs where abortion is a method of family planning' " and that "the legislative history is ambiguous and fails to shed light on relevant congressional intent." Id. at 184-85, 111 S.Ct. 1759. Similarly, the Court ruled that the Secretary's construction of Title X to require physical and financial separation between Title X projects and abortion activities was permissible. Id. at 188-90, 111 S.Ct. 1759. Importantly, even after finding the 1988 regulations facially reasonable under Chevron , the Court required the Secretary to justify his change of interpretation from the prior rules with a "reasoned analysis." Id. at 187, 111 S.Ct. 1759 (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 41, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ). In this regard, the Court observed that the Secretary's decision to reverse course from the prior regulations was justified in part because it responded to "critical reports of the General Accounting Office (GAO) and the Office of the Inspector General (OIG) that prior policy failed to implement properly the statute and that it was necessary to provide 'clear and operational guidance to grantees about how to preserve the distinction between Title X programs and abortion as a method of family planning,' " as well as "client experience under the prior policy" and "a shift in attitude against the elimination of unborn children by abortion." Id. (quoting 53 Fed. Reg. at 2923-24 ). Rust further held that the regulations did not "violate the First Amendment by impermissibly discriminating based on viewpoint" because "[t]he Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way." Id. at 192-93, 111 S.Ct. 1759. The Court noted its previous holding that "the government may 'make a value judgment favoring childbirth over abortion, and ... implement that judgment by the allocation of public funds.' " Id. (quoting Maher v. Roe , 432 U.S. 464, 474, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) ) (alteration in original). Rust thus determined that "[t]he Secretary's regulations do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities." Id. at 196, 111 S.Ct. 1759. Grantees "remain[ed] free ... to pursue abortion-related activities when they [we]re not acting under the auspices of the Title X project." Id. at 198, 111 S.Ct. 1759. The Court cautioned, however, that it was "not ... suggest[ing] that funding by the Government, even when coupled with the freedom of the fund recipients to speak outside the scope of the Government-funded project, is invariably sufficient to justify Government control over the content of expression." Id. at 199, 111 S.Ct. 1759. Lastly, the Court ruled that the 1988 regulations did not impermissibly burden a woman's Fifth Amendment right to choose whether to terminate her pregnancy. Citing the principle that "the Due Process Clauses generally confer no affirmative right to governmental aid," the Court held that "[t]he Government has no constitutional duty to subsidize an activity merely because the activity is constitutionally protected and may validly choose to fund childbirth over abortion." Id. at 201, 111 S.Ct. 1759 (quoting Webster v. Reprod. Health Servs. , 492 U.S. 490, 507, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989) ). In support of this holding, Rust reasoned that "[t]he difficulty that a woman encounters when a Title X project does not provide abortion counseling or referral leaves her in no different position than she would have been if the Government had not enacted Title X." Id. at 202, 111 S.Ct. 1759. The Court also found unpersuasive the plaintiffs' contention that "the regulations violate a woman's Fifth Amendment right to medical self-determination and to make informed medical decisions free of government-imposed harm" by "depriving a Title X client of information concerning abortion as a method of family planning." Id. The Court observed that under the regulations, "a doctor's ability to provide, and a woman's right to receive, information concerning abortion and abortion-related services outside the context of the Title X project remains unfettered." Id. at 203, 111 S.Ct. 1759. 3. 1993 Suspension of the 1988 Regulations and Promulgation of the 2000 Regulations Although they survived legal challenges, the 1988 regulations were never fully implemented. The Secretary suspended the regulations in 1993 "based, in part, upon her conclusion that the 'Gag Rule' is an inappropriate implementation of the Title X statute because it unduly restricts the information and other services provided to individuals under this program." 58 Fed. Reg. 7462, 7462 (1993). As a result, after 1993, Title X grantees returned to operating under the 1981 guidelines. In 2000, HHS formally issued new regulations "revoking the regulations published on February 2, 1988" and largely restoring the 1981 regulatory scheme. 65 Fed. Reg. 41270 (2000) ; 65 Fed. Reg. 41281 (2000). Most notably, under the 2000 regulations, Title X grantees were required to "[o]ffer pregnant women the opportunity to be provided information and counseling regarding ... [p]regnancy termination" and "provide neutral, factual information and nondirective counseling on each of the options, and referral" upon request. 42 C.F.R. § 59.5(a)(5) (July 3, 2000). Grantees' non-Title X abortion activities had to be "separate and distinct" from Title X activities, but "[c]ertain kinds of shared facilities [we]re permissible, so long as it [wa]s possible to distinguish between the Title X supported activities and non-Title X abortion-related activities." 65 Fed. Reg. at 41281. For example, common waiting rooms and staff were permissible, as long as the costs and salaries were properly pro-rated and allocated. Id. The agency provided the following explanation for doing away with the physical separation requirement: If a Title X grantee can demonstrate by its financial records, counseling and service protocols, administrative procedures, and other means that-within the identified set of Title X-supported activities-promotion or encouragement of abortion as a method of family planning does not occur, then it is hard to see what additional statutory protection is afforded by the imposition of a requirement for "physical" separation. Indeed, in the light of the enforcement history noted above, it is not unreasonable to say that the standard of "physical" separation has, as a practical matter, had little relevance or applicability in the Title X program to date. Moreover, the practical difficulty of drawing lines in this area, both as experienced prior to 1988 and as evident in the history of the Gag Rule itself, suggests that this legal interpretation is not likely ever to result in an enforceable compliance policy that is consistent with the efficient and cost-effective delivery of family planning services. 65 Fed. Reg. at 41276. 4. Statutory Developments Two statutory developments since Rust are germane to this case. First, in every year since 1996, Congress has specified in HHS appropriations acts (part of annual omnibus appropriations acts containing a subsection specific to HHS funding) that "amounts provided to [Title X] projects under such title shall not be expended for abortions, [and] that all pregnancy counseling shall be nondirective. " E.g. , Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, Pub. L. No. 115-245, Div. B, Tit. II, 132 Stat 2981, 3070-71 (2018) (emphasis added). Second, in Section 1554 of the Affordable Care Act ("ACA"), enacted in 2010, Congress directed that HHS: shall not promulgate any regulation that- (1) creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care; (2) impedes timely access to health care services; (3) interferes with communications regarding a full range of treatment options between the patient and the provider; (4) restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions; (5) violates the principles of informed consent and the ethical standards of health care professionals; or (6) limits the availability of health care treatment for the full duration of a patient's medical needs. 42 U.S.C. § 18114. As discussed below, these laws affect the enforcement of Title X. B. The Final Rule On March 4, 2019, HHS promulgated the Final Rule that is the subject of this suit. 84 Fed. Reg. 7714. The Final Rule represents a sharp break from the 2000 regulations, and a return in many aspects to the 1988 regulations. Its key provisions are detailed below. 1. Restrictions on Abortion Counseling and Referrals The Final Rule contains several overlapping provisions regarding abortion counseling. It directs that Title X grantees may "[n]ot provide, promote, refer for, or support abortion as a method of family planning." 42 C.F.R. § 59.5(a)(5) (2019). Similarly, it provides that "[a] Title X project may not encourage, promote or advocate abortion as a method of family planning." § 59.16(a)(1). And "[a] Title X project may not perform, promote, refer for, or support abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion." § 59.14(a). The Final Rule does not define what it means to "encourage," "promote," or "support" abortions. Nor does it fully illuminate the lines between permissible provision of information and impermissible encouragement, promotion, and support. However, when a Title X client is confirmed to be pregnant, the Final Rule requires that the client "shall be referred to a health care provider for medically necessary prenatal health care." § 59.14(b)(1). Such referral is mandated even if the client has decided not to carry the pregnancy to term. The "Title X provider may"-but is not required to-provide "[n]ondirective pregnancy counseling." Id. That counseling can only be "provided by physicians or advanced practice providers [ ("APPs") ]," id. , defined as "a medical professional who receives at least a graduate level degree in the relevant medical field and maintains a license to diagnose, treat, and counsel patients," § 59.2. As a result, medical professionals without a graduate level degree, such as registered nurses or licensed practical nurses, cannot provide such counseling. The Final Rule forbids Title X grantees from making referrals for abortion services. See § 59.5(a)(5) (A Title X project "must.... [n]ot provide, promote, refer for, or support abortion as a method of family planning."); § 59.14(a) ("A Title X project may not ... refer for ... abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion."). Even if a client specifically requests a referral to an abortion provider, the Title X project can at most provide "[a] list of licensed, qualified, comprehensive primary health care providers (including providers of prenatal care)." § 59.14(b)(1)(ii), (c)(2). The list cannot include specialty clinics that do not also provide comprehensive primary health care. Further, the referral list "may be limited to those that do not provide abortion." § 59.14(c)(2). If the referral list includes abortion providers, those providers may not comprise "the majority" of the providers on the list, and "[n]either the list nor project staff may identify which providers on the list perform abortion." Id. Hence, a Title X project may provide a client seeking an abortion a referral list of only providers who do not perform abortions without so indicating. A Title X project responding to a client's request for an abortion referral can, at most, provide a list on which more than half of the providers do not provide abortions. And the project cannot tell the patient which of the providers actually performs abortions. With respect to medical emergencies, the Final Rule states: "In cases in which emergency care is required, the Title X project shall only be required to refer the client immediately to an appropriate provider of medical services needed to address the emergency." § 59.14(b)(2). The Final Rule provides as the single example of a qualifying emergency "an ectopic pregnancy." § 59.14(e)(2). These counseling and referral restrictions represent a sharp break from the 2000 regulations, as well as the prior 1981 guidelines effective since 1993. Until now, Title X grantees have been required to offer pregnant women nondirective pregnancy counseling and referral upon request. 42 C.F.R. § 59.5(a)(5). Grantees were not required to refer a woman who did not intend to continue her pregnancy to prenatal care, and no restrictions were placed on referral lists. 2. Requirement of Physical and Financial Separation Under the Final Rule, "[a] Title X project must be organized so that it is physically and financially separate ... from activities which are prohibited under section 1008 of the Act and §§ 59.13, 59.14, and 59.16 of these regulations from inclusion in the Title X program." § 59.15. "In order to be physically and financially separate, a Title X project must have an objective integrity and independence from prohibited activities," and "[m]ere bookkeeping separation of Title X funds from other monies is not sufficient." Id. The Secretary will determine whether such objective integrity and independence exist by looking to relevant factors that include: "The existence of separate, accurate accounting records"; "[t]he degree of separation [of] facilities (e.g. , treatment, consultation, examination and waiting rooms, office entrances and exits, shared phone numbers, email addresses, educational services, and websites)"; "[t]he existence of separate personnel, electronic or paper-based health care records, and workstations"; and the "extent to which signs and other forms of identification of the Title X project are present, and signs and material referencing or promoting abortion are absent." Id. The new separation requirements again represent a marked departure from the current rule. Under the 2000 regulations, grantees' abortion activities were required to be financially separate from their Title X activities, but "[c]ertain kinds of shared facilities [we]re permissible, so long as it [wa]s possible to distinguish between the Title X supported activities and non-Title X abortion-related activities." 65 Fed. Reg. at 41281. For example, common waiting rooms and staff were permissible, as long as the costs and salaries were properly pro-rated and allocated. Id. 3. Removal of Requirement that Family Planning Methods and Services be "Medically Approved" Previous Title X regulations required projects to "[p]rovide a broad range of acceptable and effective medically approved family planning methods ... and services." 42 C.F.R. § 59.5(a)(1) (2000) (emphasis added). The Final Rule removes the "medically approved" language; it simply requires Title X projects to "[p]rovide a broad range of acceptable and effective family planning methods ... and services." § 59.5(a)(1). 4. Encouragement of Family Participation The Final Rule requires Title X grantees to "[e]ncourage family participation in the decision to seek family planning services; and, with respect to each minor patient, ensure that the records maintained document the specific actions taken to encourage such family participation (or the specific reason why such family participation was not encouraged)." § 59.5(a)(14). The 2000 regulations contained no such requirement, although Title X itself provides that "[t]o the extent practical, entities which receive grants or contracts under this subsection shall encourage family participation in projects assisted under this subsection." 42 U.S.C. § 300(a). C. Procedural Background The motions currently before the Court arise from two lawsuits. The first is brought by the State of California ("California"). See State of California v. Azar et al. , No. 3:19-cv-1184-EMC, 2019 WL 1023794 (N.D. Cal. filed March 4, 2019) (" California "), Docket No. 1 ¶ 1. The second is brought by Essential Access Health, Inc. and Dr. Melissa Marshall (collectively, "Essential Access"). See Essential Access Health, Inc., et al. v. Azar et al. , No. 3:19-cv-1195-EMC (N.D. Cal. filed March 4, 2019) ("Essential Access "), Docket No. 1 ¶¶ 15-16. California's Title X network is the largest in the nation. California Docket No. 1 ¶ 3. Essential Access is a nonprofit corporation that is California's sole Title X grantee and administers the state's Title X program. Essential Access Docket No. 1 ¶ 15. Dr. Marshall is the Chief Executive Officer of CommuniCare Health Centers in Yolo County, California, which has been part of the State's Title X network since 1993. Id. ¶ 16. California, Essential Access Health, and Dr. Marshall are hereinafter referred to collectively as "Plaintiffs." Defendants are HHS and Alex M. Azar, II, sued in his official capacity as Secretary of HHS. California and Essential Access filed their respective motions for preliminary injunction on March 21, 2019. California Docket No. 26 ("California Mot."); Essential Access Docket No. 25 ("Essential Mot."). Defendants filed a consolidated opposition on April 8, 2019. California Docket No. 61 ("Opp."). Plaintiffs filed replies on April 11, 2019. California Docket No. 84 ("California Reply"); Essential Access Docket No. 63 ("Essential Reply"). The Court held a hearing on the motions on April 18, 2019. II. LEGAL STANDARD A preliminary injunction is a matter of equitable discretion and "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Its "purpose ... is to preserve the status quo and the rights of the parties until a final judgment issues in the cause." U.S. Philips Corp. v. KBC Bank N.V. , 590 F.3d 1091, 1094 (9th Cir. 2010). A party seeking a preliminary injunction must meet one of two variants of the same standard. The traditional Winter standard requires the movant to show "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter , 555 U.S. at 20, 129 S.Ct. 365. Under the "sliding scale" variant of the same standard, "if a plaintiff can only show that there are 'serious questions going to the merits'-a lesser showing than likelihood of success on the merits-then a preliminary injunction may still issue if the 'balance of hardships tips sharply in the plaintiff's favor,' and the other two Winter factors are satisfied." All. for the Wild Rockies v. Pena , 865 F.3d 1211, 1217 (9th Cir. 2017) (emphasis in original) (quoting Shell Offshore, Inc. v. Greenpeace, Inc. , 709 F.3d 1281, 1291 (9th Cir. 2013) ). In other words, irrespective of the robustness of the showing on the merits required, a plaintiff must demonstrate it is likely to suffer irreparable injury in the absence of preliminary relief. Accordingly, the Court begins by addressing that factor. III. DISCUSSION A. Likelihood of Irreparable Harm, the Balance of Equities, and the Public Interest The record evidence establishes that the irreparable injury, balance of hardships, and public interest factors tip sharply in Plaintiffs' favor. All. for the Wild Rockies , 865 F.3d at 1217. 1. Harm to California's Public Health and Essential Access's Organizational Mission Plaintiffs are likely to suffer several forms of irreparable harm unless the Final Rule is enjoined pending resolution of this case on the merits. The first type of harm is to California's public health and to Essential Access's organizational mission to promote access to high-quality healthcare. See State v. Bureau of Land Mgmt. , 286 F. Supp. 3d 1054, 1074 (N.D. Cal. 2018) (finding irreparable harm from agency rule that "will have irreparable consequences for public health") (citing Sierra Club v. U.S. Dep't of Agric., Rural Utilities Serv. , 841 F. Supp. 2d 349, 358-59 (D.D.C. 2012) ); Valle del Sol Inc. v. Whiting , 732 F.3d 1006, 1029 (9th Cir. 2013) (finding irreparable harm where "organizational plaintiffs have shown ongoing harms to their organizational missions as a result of the statute"); League of Women Voters of United States v. Newby , 838 F.3d 1, 9 (D.C. Cir. 2016) (holding that obstacles that "make it more difficult for the [organizations] to accomplish their primary mission ... provide injury for purposes both of standing and irreparable harm"). California's efforts to advance its public health objectives by "provid[ing] women and men a means by which they decide for themselves the number, timing, and spacing of their children," Cantwell Decl. ¶ 3, and Essential Access's mission "to champion and promote quality sexual and reproductive health care for all," Rabinovitz Decl. ¶ 3, are in accord. Both will be undermined by the Final Rule qualitatively and quantitatively. First , the Final Rule will directly compromise providers' ability to deliver effective care and force them to obstruct and delay patients with pressing medical needs. Abortion is a time-sensitive procedure; the medical risks and costs associated with it "increase with any delay." Kost Decl. ¶ 93. Yet, the Final Rule erects barrier after barrier between patients trying to make an informed decision about whether to continue their pregnancies and their clinicians. A clinician must refer a pregnant patient to prenatal care that focuses on carrying the pregnancy to term, even if the patient has made clear her decision to terminate her pregnancy. Id. ¶¶ 87, 91. The clinician cannot refer the patient to a provider of abortion services, even if the patient specifically requests such a referral. Id. ¶ 88. At most the clinician may provide a referral list. Most of the list must be non-abortion providers-in other words, most of the list must be non-responsive to what the patient requests. Id. And the clinician is barred from even identifying to the patient which providers on the referral list are the ones she asked for (providers of abortion services), so the patient must expend further time and effort figuring out for herself which providers on the list in fact can give her the care she wants and needs. Id. Incredibly, the Final Rule does not require a clinician who furnishes a patient with a referral list that is wholly non-responsive to even notify her that the list does not contain a single provider of the services she requested. Id. This pregnancy counseling process is thus, as the President of Essential Access aptly puts it, a "charade" from beginning to end. Rabinovitz Decl. ¶ 50. The overall effect of the Final Rule is to "harm and confuse all patients" during a medically and emotionally sensitive period and "ultimately threaten their health and well-being." Kost Decl. ¶¶ 90, 92, 94. Second , the Final Rule threatens to drastically reduce access to the wide array of services provided by Title X projects by driving large numbers of providers out of the program. Compliance with the physical separation requirement, which in many cases effectively requires providers to establish "mirror" facilities and staff, would be cost-prohibitive for many providers in California's Title X network. See Rabinovitz Decl. ¶ 43; Nestor Decl. ¶ 13; McKinney Decl. ¶ 10; Forer Decl. ¶ 31. In addition, a significant number of Title X projects have indicated that they will likely drop out of the program because they believe the Final Rule compels them to compromise the quality of care they provide and violate their ethical obligations. Sub-recipients of Essential Access's Title X funds representing 233 clinic sites serving over 774,000 patients "would leave or consider leaving" Title X if they are prohibited from referring patients for abortion services. Rabinovitz Decl. ¶ 42. Sub-recipients representing 194 clinic sites serving over 682,000 patients "will leave or consider leaving" if they are required by the Final Rule to encourage family involvement where an adolescent patient seeks confidential services. Id.; see, e.g. , Nestor Decl. ¶¶ 11-12; McKinney Decl. ¶ 9. Likewise, "Planned Parenthood affiliates and their health centers"-which serve over 40% of all Title X patients nationwide-"would be forced to discontinue their participation in Title X if the Proposed Rule takes effect." Rich Decl., Exh. M at 15-16. The net effect of so many providers leaving Title X will be a significant reduction in the availability of important medical services. The substantial Title X funding Essential Access currently receives-approximately $ 20 million per year-provides "comprehensive sexual and reproductive health care for more than 1 million" patients in California annually. Rabinovitz Decl. ¶¶ 1, 13-15. Essential Access has submitted evidence that the vast majority of its sub-recipients-85 percent-would be forced to lay off staff, cut training, and reduce outreach and education activities without that funding. Id. ¶ 44. A third would have to reduce clinic hours. Id. Some would have to shut down core services and programs entirely. See, e.g. , Thomas Decl. ¶¶ 11-13 (Fresno Economic Opportunities Commission "will not be able to operate" HEARTT, its family planning and reproductive health service for youth, without Title X funds); Nestor Decl. ¶¶ 5-10, 14 (Without Title X funds, the San Francisco Department of Public Health will have to "substantially curtail" its training programs, public education and outreach projects, and "special projects to address emerging public health challenges"); Marshall Decl. ¶ 28 ("Without Title X funding, CommuniCare will not run the outreach services that inform young people of its teen clinic services, nor provide teen clinic services at all."); Wilburn Decl. ¶¶ 16-21, ("The loss of Title X funds will be nearly fatal to [the Community Action Partnership of San Luis Obispo County]'s Health and Prevention Division," including its outreach programs, teen program, and Hepatitis C testing services). If Title X funding is reduced, patients in California accordingly stand to lose access to a wide range of "vital health services," many of which have nothing to do with abortion, since Title X providers "serve as a trusted entry point for medical care generally." California Mot. at 24; see, e.g. , Rabinovitz Decl. ¶ 12 ("In 2017 alone, Essential Access sub-recipients ... provided more than 1.6 million family planning visits" and administered "more than 148,000 Pap tests, more than 118,000 clinical breast exams, more than 642,000 chlamydia screenings, more than 700,000 gonorrhea screenings, and more than 341,000 HIV tests."); Brindis Decl. ¶¶ 59-60; Tuttle Decl. ¶ 8; McCarthy Decl. ¶ 7; Wilburn Decl. ¶¶ 17-19. In particular, "[i]n less populous regions, the Rule will create 'contraceptive deserts' where women in need of Title X-funded contraceptive services will be unable to find an affordable, well-qualified provider within their county." California Mot. at 21. Nationwide, in one-fifth of U.S. counties the only safety-net family planning center is a Title X site. Kost Decl. ¶ 78. Should any of these sites drop out of the Title X program as a result of the Final Rule, many individuals would have no access to high-quality, affordable family planning care in their counties at all. Id. In California specifically, eighteen counties would be left without a single Title X-funded health center if all the family planning providers that perform abortions were to close. Rabinovitz Decl. ¶ 43. Even among providers who remain in Title X, service capacity will decrease because the requirement that pregnancy counseling can only be provided by physicians and APPs excludes "vast numbers of medical professionals" who currently provide such counseling. Rabinovitz Decl. ¶ 52; McKinney Decl. ¶ 11; Kost Decl. ¶ 86. This will compound an already "severe crisis in physician and nurse practitioner availability," creating even more critical shortages in counseling resources. Castellano-Garcia Decl. ¶ 11. Many Title X grantees do not have enough physicians and APPs on staff to serve their patients, so those patients will have to either wait for much longer to receive counseling that is often time-sensitive, or simply will not receive the family-planning information they need. See, e.g. , McKinney Decl. ¶ 11; Forer Decl. ¶ 30. Third , the quality of Title X services will be compromised. Patients served by Title X-funded providers use more effective contraceptive methods at higher rates than those served by non-Title X-funded providers. Rabinovitz Decl. ¶ 46. Title X patients "are more likely [than non-Title X patients] to adopt or continue using long-acting and reversible contraceptive methods ('LARCs')," which "are highly effective [in preventing pregnancy] because they obviate the need for daily administration or use at the time of intercourse." Id. ; see also Kost Decl. ¶¶ 119-121 (describing a 35 percent reduction in women using LARCs after Texas "made a series of changes to its family planning program ..., which included disqualifying agencies providing abortion"). "Diminishing access to LARCs may result in a greater number of unintended pregnancies." Rabinovitz Decl. ¶ 46. Moreover, the Final Rule's separation provision requires health centers to maintain duplicate records systems. Such non-integrated records systems threaten patient health by increasing the risk of error due to "incomplete medical histories, missing data, lost test results, incorrect medication, dosage instructions, and allergy warnings, and other miscommunications across patient records." Id. ¶ 70. Ultimately, the consequence of the reduced availability and quality of health services is worse health outcomes for patients and the public as a whole. The number of unintended pregnancies will increase, which is "likely to result in premature births, low birth weight infants, and congenital defects." Cantwell Decl. ¶¶ 24, 29; Brindis Decl. ¶¶ 52-55. Indeed, the Final Rule could have the perverse effect of increasing abortion rates, since "[o]ver half of unintended pregnancies end in miscarriage or abortion." California Mot. at 23; Tosh Decl. ¶ 25 (citing report documenting that 45% of unintended pregnancies result in abortion, and another 13% result in miscarriages). Instances of STIs and other conditions that would otherwise be diagnosed by Title X-funded testing will also likely increase. See Brindis Decl. ¶¶ 59-65 (citing study estimating that in 2017, Title X-funded testing "averted approximately 90 to 400 cases of HIV and 47,740 to 56,670 other STIs," diagnosed "many pelvic inflammatory disease (PID) cases, ectopic pregnancies, ... infertility cases" and "reproductive cancers"); Kost Decl. ¶ 82. In short, there is substantial evidence in the record before the Court which establishes that California's public health and Essential Access's mission to promote quality sexual and reproductive care will be irreparably harmed unless the Final Rule is enjoined. 2. Economic Harm to California Next, the economic harms that flow from the Final Rule's detrimental effects on public health also constitute irreparable harm to California. See California v. Health & Human Servs. , 351 F. Supp. 3d 1267, 1297 (N.D. Cal. 2019) (" HHS " ) (finding irreparable harm to plaintiff states where HHS rule creating exemptions to the ACA contraceptive mandate will cause "tens of thousands of women" to lose contraceptive coverage, and the states "document[ed] the fiscal harm that will flow to them as a result"); see also California v. Azar , 911 F.3d 558, 581 (9th Cir. 2018) (" Azar ") (affirming finding of irreparable economic harm to states from the same HHS rules "because the states will not be able to recover monetary damages" for their APA claims per 5 U.S.C. § 702 ). California's state Medicaid program, Medi-Cal, "is the primary funder for low-income Californians' healthcare services." Cantwell Decl. ¶ 28. Via Medi-Cal, the Final Rule's impact on public health translates to substantial financial and administrative burdens for California. For example, Medi-Cal insures 64% of unplanned births in the state. Tosh Decl. ¶¶ 26, 44. It is estimated that each unintended pregnancy in California costs the public fisc $ 6,557 in medical, welfare, and other social service costs. Id. ¶ 27. Moreover, Medi-Cal "would likely also bear a portion of the costs associated with any delays in the diagnosis and treatment of STIs or breast or cervical cancer." Cantwell Decl. ¶ 30. 3. Economic Harm to Essential Access Essential Access will also suffer irreparable economic harm if the Final Rule's physical separation requirement becomes effective. Because that requirement is so stringent, Essential Access estimates that it "will be forced to spend exorbitant sums to construct a 'mirror' office," at the cost of $ 325,000 in the first year and $ 212,500 every year thereafter. Essential Reply at 13; Rabinovitz Decl. ¶ 66. Its sub-recipients estimate that compliance with the separation requirement will cost an average of $ 119,000 per agency. Rabinovitz Decl. ¶ 69. Bringing its infrastructure into compliance with the separation requirement will also require Essential Access to divert resources it "otherwise devotes to its core operations and its mission." Essential Mot. at 32 (citing Rabinovitz Decl. ¶ 67); see E. Bay Sanctuary Covenant v. Trump , 354 F. Supp. 3d 1094, 1116 (N.D. Cal. 2018) (holding that organizational plaintiffs " 'have established a likelihood of irreparable harm' based on their showing of serious 'ongoing harms to their organizational missions,' including diversion of resources") (quoting Valle del Sol , 732 F.3d at 1029 ). As with the economic harm to California, Essential Access's economic harm is irreparable because it "will not be able to recover monetary damages" for its APA claims. Azar , 911 F.3d at 581 (citing 5 U.S.C. § 702 ). 4. Defendants' Responses to Plaintiffs' Evidence of Irreparable Harm Defendants attack Plaintiffs' assertions of irreparable harm on several grounds. First , Defendants do not dispute that damage to public health can constitute irreparable harm, but instead claim that the public health impact California is describing depends on the response of regulated third parties-i.e. , recipients of Title X funding-to the Final Rule, and therefore that the "chain of events necessary to create these speculative harms" is too "attenuated." Opp. at 43 (citing Lujan v. Defs. Of Wildlife , 504 U.S. 555, 562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). Not so. To begin with, Defendants ignore that the Final Rule's harm to Title X patients described above directly undermines California's public health objectives. Moreover, uncontroverted record evidence Plaintiffs have submitted shows that the harms they describe are not speculative; they are "likely in the absence of an injunction." Winter , 555 U.S. at 22, 129 S.Ct. 365 (emphasis in original). As detailed above, Planned Parenthood has stated unequivocally that its whole network of health centers "would be forced to discontinue their participation in Title X if the Proposed Rule takes effect." Rich Decl., Exh. M at 15. So have many Title X providers in California's network. See, e.g. , Nestor Decl. ¶ 11; McKinney Decl. ¶ 9. Indeed, one has already dropped out of Title X as of April 4, 2019 in response to the Final Rule. Essential Access Docket No. 64 (Supplemental Rabinovitz Decl.) ¶ 5. Hundreds more have indicated that they "would leave or consider leaving" Title X if the Final Rule is implemented. Rabinovitz Decl. ¶ 42. Equally unambiguous are the adverse health consequences that will follow from the mass departure of Title X providers. The inverse correlation between the availability of publicly-funded contraceptives and the rate of unintended pregnancies is well-documented in the record. See Brindis Decl., Exh. B at 11, 12 n.73 (citing a 2015 report showing that 286,700 unintended pregnancies were averted in California in a single year as a result of publicly funded contraceptive services); Rich Decl., Exh. L at 31-32 ("Title X-funded services helped women avert an estimated 822,300 unintended pregnancies in 2015 alone, thus preventing 387,200 unplanned births and 277,800 abortions. Without services provided by these providers, the U.S. unintended pregnancy rate would have been 31% higher."). Plaintiffs have also cited three case studies documenting the adverse health consequences that directly resulted when family planning services providers that offer abortion-related services were excluded from public funding. See Brindis Decl., Exh. B at 6-7 (Indiana county that cut funding to Planned Parenthood facility almost immediately experienced "one of the largest and most rapid HIV outbreaks the country has ever seen"); Kost Decl. ¶¶ 119-22 (disqualifying agencies that provided abortion services from public funding in Texas and Iowa led to marked decreases in family planning services rendered and the use of effective contraceptives). Moreover, there is already a "severe" shortage of physician and nurse practitioner availability, so implementation of the Final Rule's physician and APP requirement will directly exacerbate patients' lack of access to pregnancy counseling. Castellano-Garcia Decl. ¶ 11; McKinney Decl. ¶ 11; Forer Decl. ¶ 30. The resulting shortfall in service capacity caused would manifest immediately, before any final decision on the merits in this case will be reached. See 11A Charles Alan Wright et al., Federal Practice and Procedure § 2948.1 (3d ed. 2013) ("Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered."). Nothing about this chain of causation is attenuated. What is speculative is Defendants' assurance that any gap left by an exodus in current Title X providers will be fully filled by new providers entering the program. Defendants point to HHS's claim in the Final Rule that it "does not anticipate that there will be a decrease in the overall number of facilities offering [Title X] services, since it anticipates other, new entities will apply for funds, or seek to participate as subrecipients, as a result of the final rule." 84 Fed. Reg. at 7782 ; see also id. at 7756. But this claim is not backed by any discernible evidence or analysis. See Part III.C.2.f., infra (discussing HHS's analysis of the expected costs and benefits of the Final Rule). In fact, at oral argument, when pressed for any record evidence substantiating this (highly consequential) assertion, Defendants' counsel could offer none. Counsel insisted that it is "just intuitive" that new grantees will fully replace departing ones in the "fluid marketplace" for medical services. Intuition is no rebuttal to Plaintiffs' evidence of threatened irreparable harm. Nor is Defendants' "intuition" presumed as a matter of logic and common sense. Plaintiffs note that nationwide, in one-fifth of U.S. counties, including rural counties in California, the only safety-net family planning center is a Title X site. Kost Decl. ¶ 78; see also Rabinovitz Decl. ¶ 51 (stating that in some rural areas of California, a patient would have to travel more than five hours in order to access an abortion provider that qualifies for a referral under the Final Rule). It defies common sense to assume that in these regions, new healthcare centers will simply materialize and seamlessly assume the client load of exiting grantees. Second , Defendants insist that the claimed harm to Essential Access is not imminent. Opp. at 43-44. This argument is unavailing for the same reason that the expected harm to California is not speculative-Plaintiffs' evidence demonstrates that access to and the quality of family planning services will be adversely affected as soon as the Final Rule goes into effect. With respect to compliance costs, the process for establishing a physically and financially separate "mirror" office would "requir[e] Essential Access to expend resources on planning and implantation of operational changes immediately after the Final Rule takes effect." Rabinovitz Decl. ¶ 66 (emphasis added); see id. ¶ 68. The same time pressure extends to Essential Access's sub-recipients. McKinney Decl. ¶ 10. Furthermore, as to Essential Access' ability to deliver quality health care, it cannot be ignored that abortion is a time-sensitive procedure, and the medical risks and costs associated with it "increase with any delay." Kost Decl. ¶ 93; cf. Chalk v. U.S. Dist. Court Cent. Dist. of California , 840 F.2d 701, 710 (9th Cir. 1988) (finding that time-sensitive nature of AIDS diagnosis is a "factor favoring a preliminary injunction"). The Final Rule, by requiring Title X projects to provide incomplete and perhaps even misleading information to patients, and prohibiting projects from referring patients to abortion providers, forces patients to expend more time and effort to secure information and referrals regarding abortions. In doing so, it increases the health risks and limits the care options for pregnant women, whether they have already decided to obtain an abortion or are simply seeking more information to guide their determination of whether to continue their pregnancies. See Kost Decl. ¶ 94 ("[T]he inability to make a fully informed decision on how to proceed with a pregnancy would be especially harmful for women with severe diabetes, heart conditions, HIV/AIDS and estrogen-dependent tumors-all conditions that could be exacerbated by continuing a pregnancy."). In other words, the Final Rule is likely to jeopardize patients' welfare as soon as it is implemented, thus impairing both patient health and Essential Access' central mission. Third , Defendants argue that the alleged harm to Essential Access's sub-recipients and Title X patients is not harm to Essential Access itself. See Opp. at 43. This argument misses the point. As noted above, Essential Access's organizational mission is to "promote quality sexual and reproductive health care for all." Rabinovitz Decl. ¶ 3. It works toward this mission in part by distributing Title X funds to its sub-recipients to facilitate their provision of family planning services to patients. Id. ¶ 6. Thus, the potentially detrimental impact the Final Rule will have on those sub-recipients' capacities to provide services to Title X patients is just one manifestation of the harm that Essential Access will suffer with respect to its organizational mission. Fourth , Defendants recite the proposition that "ordinary compliance costs are typically insufficient to constitute irreparable harm." Opp. at 45 (quoting Freedom Holdings, Inc. v. Spitzer , 408 F.3d 112, 115 (2d Cir. 2005) ). "But as the Ninth Circuit recently reiterated, the general rule that '[e]conomic harm is not normally considered irreparable' does not apply where there is no adequate remedy to recover those damages, such as in APA cases." E. Bay Sanctuary Covenant , 354 F. Supp. 3d at 1116 (quoting Azar , 911 F.3d at 581 ). In East Bay Sanctuary , the court found that the plaintiffs established a likelihood of irreparable harm "based on their showing of serious 'ongoing harms to their organizational missions,' including diversion of resources and the non-speculative loss of substantial funding from other sources." 354 F. Supp. 3d at 1116 (citing Valle del Sol , 732 F.3d at 1029 ). The same reasoning obtains here, because Essential Access and its sub-recipients will not be able to recover for the substantial costs they would need to expend to come into compliance with the new separation requirements even if the Final Rule is found to violate the APA. Accordingly, Plaintiffs have satisfied the irreparable harm prong of the preliminary injunction inquiry. B. The Balance of Equities and the Public Interest Where the government is a party to a case in which a preliminary injunction is sought, the balance of the equities and public interest factors merge. Drakes Bay Oyster Co. v. Jewell , 747 F.3d 1073, 1092 (9th Cir. 2014). Here, both factors weigh in favor of preliminarily enjoining the Final Rule. On Plaintiffs' side is their interest in averting the "potentially dire public health and fiscal consequences from the implementation of the Final Rules," HHS , 351 F. Supp. 3d at 1298, discussed above. The Final Rule threatens to impair the health and welfare of women who benefit from Title X-funded services and Plaintiffs' mission to provide quality healthcare. Moreover, there are the "substantial costs stemming from a higher rate of unintended pregnancies that are likely to occur if women lose access to the [family planning] coverage afforded under the rules now in place." Id. And Plaintiffs are not the only ones that will suffer hardship absent an injunction. See Golden Gate Rest. Ass'n v. City & Cty. of San Francisco , 512 F.3d 1112, 1126 (9th Cir. 2008) ("In considering the public interest, we may consider the hardship to all individuals covered by the [challenged law], not limited to parties...."). As explained above, public health problems will adversely impact the general public. See Stormans, Inc. v. Selecky , 586 F.3d 1109, 1139 (9th Cir. 2009) ("The 'general public has an interest in the health' of state residents.") (quoting Golden Gate Rest. Ass'n , 512 F.3d at 1126 ). A group of thirteen municipalities has also submitted an amicus brief explaining that they will be harmed by the Final Rule in analogous ways to California by the implementation of the Final Rule. See Essential Access Docket No. 62 at 7-13. Each of these municipalities receives substantial Title X funding annually and they collectively serve hundreds of thousands of patients through their Title X programs. See id. at 4-7. On the other hand, Defendants identify no substantiated harm if a preliminary injunction were to issue. They have not documented any substantial abuse of Title X funds. See Part III.C.2.b., infra. The only harm Defendants currently assert is that which the government will suffer "if it 'is enjoined by a court from effectuating statutes enacted by representatives of its people.' " Opp. at 46 (quoting Maryland v. King , 567 U.S. 1301, 133 S.Ct. 1, 183 L.Ed.2d 667 (2012) (Roberts, C.J., in chambers)). But as Judge Gilliam pointed out in another case: "Here, of course, the 'representatives of the people'-the United States Congress-passed the [relevant statute], and the precise question in this case is whether the Executive's attempt to implement the Final Rules is inconsistent with Congress's directives." HHS , 351 F. Supp. 3d at 1299. As set forth in detail below, this Court finds a high likelihood that the Final Rule was promulgated in violation of substantive statutory law and APA-mandated procedures, and "[t]here is generally no public interest in the perpetuation of unlawful agency action." League of Women Voters of United States v. Newby , 838 F.3d 1, 12 (D.C. Cir. 2016) (citations omitted). "To the contrary, there is a substantial public interest 'in having governmental agencies abide by the federal laws that govern their existence and operations.' " Id. (quoting Washington v. Reno , 35 F.3d 1093, 1103 (6th Cir. 1994) ). It may be true that Defendants intend the Final Rule to represent the government's "value judgment favoring childbirth over abortion," Opp. at 46 (quoting Rust , 500 U.S. at 192-93, 111 S.Ct. 1759 ), but that value judgment cannot be effectuated in an unlawful manner or in violation of other Congressional directives. Hence, the balance of hardships and the public interest tip sharply in favor of Plaintiffs. Although injunctive relief is thus warranted "if [Plaintiffs] can only show that there are 'serious questions going to the merits,' " All. for the Wild Rockies , 865 F.3d at 1217, for the reasons discussed below, Plaintiffs have done more than show "serious questions." They have established they are likely to succeed on the merits of many of their claims. C. Likelihood of Success on the Merits/Serious Questions Going to the Merits California argues that it is likely to succeed on its APA claims because the Final Rule is not in accordance with law and exceeds statutory authority, in violation of 5 U.S.C. § 706(2)(A) and (2)(C). California also contends the Rule is arbitrary and capricious, in violation of 5 U.S.C. § 706(2)(A). California Mot. at 10-19. Essential Access makes similar arguments under the APA, as well as an additional contention that the Final Rule was promulgated without proper notice and comment. Essential Mot. at 9-21. It also presses two constitutional claims: that the Final Rule infringes upon Dr. Marshall's First Amendment rights, and that it is void for vagueness under the Fifth Amendment Due Process Clause. Id. at 21-25. Each claim is addressed below. 1. The Final Rule is Not in Accordance with Law The APA requires a reviewing court to "hold unlawful and set aside agency action" that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). " '[N]ot in accordance with law' ... means, of course, any law, and not merely those laws that the agency itself is charged with administering." F.C.C. v. NextWave Pers. Commc'ns Inc. , 537 U.S. 293, 300, 123 S.Ct. 832, 154 L.Ed.2d 863 (2003) (emphasis in original). Defendants assert that the Final Rule cannot be unlawful under § 706(2)(A) because it is "materially indistinguishable from [the 1988 rule] the Supreme Court has already upheld" in Rust. Opp. at 8. Plaintiffs, however, rely on HHS Appropriations Acts and the ACA, which were enacted after Rust was decided, so their claim is not automatically foreclosed by Rust. The Court therefore must determine whether the Final Rule is inconsistent with the Appropriations Acts and the ACA. a. The Nondirective Counseling Provision The most recent "Department of Defense and Labor, Health and Human Services, and Education Appropriations Act" provides: For carrying out the program under title X of the PHS Act to provide for voluntary family planning projects, $ 286,479,000: Provided , That amounts provided to said projects under such title shall not be expended for abortions, that all pregnancy counseling shall be nondirective , and that such amounts shall not be expended for any activity (including the publication or distribution of literature) that in any way tends to promote public support or opposition to any legislative proposal or candidate for public office. Pub. L. No. 115-245, Div. B, Tit. II, 132 Stat 2981, 3070-71 (2018) (emphasis added). This "Nondirective Counseling Provision" has been included in HHS appropriations acts ("Appropriations Acts") every year since 1996 in substantially similar form. See, e.g. , Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, 1321-22 (1996) (requiring that "all pregnancy counseling shall be nondirective...."). According to Plaintiffs, the provisions of the Final Rule that restrict abortion counseling and referral conflict with the Nondirective Counseling Provision. See California Mot. at 11-12; Essential Mot. at 13-14. Defendants in their briefing initially took this to mean that Plaintiffs were arguing that "the nondirective provision implicitly repealed section 1008 and Rust ," Opp. at 14, because Rust upheld similar provisions in the 1988 regulations as a permissible construction of Section 1008. However, Defendants subsequently recognized that the doctrine of implied repeal is not apposite here because the Nondirective Counseling Provision and Section 1008 are not in irreconcilable conflict. See Radzanower v. Touche Ross & Co. , 426 U.S. 148, 154-55, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976) (explaining that repeals by implication come into play "where provisions in the two acts are in irreconcilable conflict") (citation omitted); Opp. at 16 ("There is no conflict-much less an irreconcilable one-between Title X ... and the nondirective provision."). Rust did not purport to interpret Section 1008 as requiring directive counseling in favor of birth; rather, it held that HHS's 1988 rule was one permissible interpretation, not the only permissible interpretation. See Rust , 500 U.S. at 184, 111 S.Ct. 1759 ("The language of § 1008-that '[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning'-does not speak