UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ STATE OF TENNESSEE, │ Plaintiff-Appellant, │ │ v. │ > No. 24-5220 │ XAVIER BECERRA, in his official capacity as Secretary │ of Health and Human Services; UNITED STATES │ DEPARTMENT OF HEALTH AND HUMAN SERVICES; │ JESSICA S. MARCELLA, in her official capacity as │ Deputy Assistant Secretary for Population Affairs; │ OFFICE OF POPULATION AFFAIRS, │ Defendants-Appellees. │ ┘ Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 3:23-cv-00384—Travis Randall McDonough, District Judge.

Argued: July 18, 2024

Decided and Filed: August 26, 2024

Before: GIBBONS, KETHLEDGE, and DAVIS, Circuit Judges. _________________

COUNSEL ARGUED: Whitney D. Hermandorfer, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant. Courtney L. Dixon, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Whitney D. Hermandorfer, J. Matthew Rice, Philip Hammersley, Harrison Gray Kilgore, Trenton Meriwether, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant. Courtney L. Dixon, Brian J. Dixon, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Justin L. Matheny, OFFICE OF THE MISSISSIPPI ATTORNEY GENERAL, Jackson, Mississippi, Christopher P. Schandevel, ALLIANCE DEFENDING FREEDOM, Lansdowne, Virginia, Eric N. Kniffin, ETHICS & PUBLIC POLICY CENTER, Washington, D.C., Brianne J. Gorod, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., for Amici Curiae. No. 24-5220 Tennessee v. Becerra, et al. Page 2

DAVIS, J., delivered the opinion of the court in which GIBBONS, J., joined in full. KETHLEDGE, J. (pp. 24–31), delivered a separate opinion dissenting in part and concurring in the judgment in part.

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OPINION _________________

DAVIS, Circuit Judge. In 2021, the United States Department of Health and Human Services (“HHS”) promulgated a rule requiring Title X grant recipients to provide neutral, nondirective counseling and referrals for abortions to patients who request it. Tennessee, which has been a Title X recipient for over 50 years, recently outlawed most abortions in the state. After doing so, Tennessee would commit only to conducting counseling and referrals for options deemed legal in the state. HHS considered Tennessee’s commitment to be out of compliance with its regulatory requirements. So it opted to discontinue the grant. Tennessee filed suit to challenge HHS’s action and enjoin it from closing the grant. The district court denied Tennessee’s request for preliminary injunction because it held that Tennessee does not have a strong likelihood of succeeding on the merits of its claim and that the balance of the remaining preliminary injunction factors weigh in HHS’s favor. For the reasons set forth below, we affirm.

I.

A.

Factual Back