## Facts

- Title X funds family-planning projects and bars using funds in programs where abortion is a method of family planning.
- In 1988, HHS issued regulations interpreted and enforced as a strict ban on abortion counseling and referrals within Title X projects; that interpretation was upheld by the Supreme Court.
- After the Supreme Court decision, the President directed HHS not to apply the regulations to prevent a woman from receiving abortion information from her doctor.
- The HHS Secretary issued internal memoranda to regional administrators (“Directives”) stating that, although the 1988 regulations remained, physicians (but not other Title X personnel) could provide abortion counseling and information within the doctor-patient relationship.
- HHS did not use APA notice-and-comment procedures before issuing the Directives.
- Provider associations sued, arguing the Directives effectively amended the 1988 regulations and were procedurally invalid under the APA.
- The district court enjoined enforcement of the Directives as procedurally improper, and HHS appealed.

## Issues

1. Whether HHS’s Directives were exempt interpretive rules, or instead legislative rules that required APA notice-and-comment rulemaking.
2. Whether HHS could enforce the Directives without first complying with APA § 553 procedures.

## Decision

- The D.C. Circuit affirmed the district court.
- The court held the Directives were not interpretive rules; they effectively amended the 1988 regulation by significantly changing its meaning as previously interpreted and enforced.
- Because the Directives were legislative in effect, HHS was required to conduct APA notice-and-comment rulemaking before implementing them.
- The court upheld injunctive and declaratory relief barring enforcement of the Directives unless and until HHS complied with APA § 553.

## Legal Principles

- An agency action labeled as an “interpretation” is not exempt from APA notice-and-comment if it significantly changes the meaning or operation of an existing regulation.
- Interpretive rules explain or clarify existing law; legislative rules change rights or obligations and must be promulgated through notice-and-comment procedures.
- A reversal of an established regulatory interpretation—especially one consistently enforced and central to prior judicial review—may constitute an amendment requiring APA rulemaking procedures.
- Internal agency memoranda with substantial practical impact on regulated parties can be legislative in effect and procedurally invalid if issued without APA § 553 compliance.

## Conclusion

The court held that HHS’s Directives allowing physician abortion counseling in Title X projects changed the established meaning and enforcement of the 1988 regulations and therefore could not be implemented without APA notice-and-comment rulemaking; enforcement was enjoined pending compliance with § 553.


Nat'l Fam. Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227 (D.C. Cir. 1992)