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Justices will hear appeal of abortion rule Baltimore challenged

The rule prohibiting taxpayer-funded clinics from referring clients to abortion providers has been interpreted in starkly different ways by Republican and Democratic administrations. (AP Photo/Alex Brandon, File)

The rule prohibiting taxpayer-funded clinics from referring clients to abortion providers has been interpreted in starkly different ways by Republican and Democratic administrations. (AP Photo/Alex Brandon, File)

Over Baltimore’s objection, the U.S. Supreme Court on Monday agreed to consider the legality of a federal rule barring taxpayer-funded pregnancy clinics from referring women for abortions.

In a brief order, the justices said they will review a 4th U.S. Circuit Court of Appeals decision that the Health and Human Services Department rule does not comply with federal law and was adopted arbitrarily. The 4th  Circuit’s published 9-6 ruling last year upheld U.S. District Judge Richard D. Bennett’s decision enjoining enforcement of the Title X rule in a challenge Baltimore brought.

In its brief order, the Supreme Court said it will also review a decision from another federal appeals court that found the rule in compliance with federal law.

The justices have consolidated the cases and will hear them together during its 2021-2022 term, which begins in October. A decision is expected by June 2022.

The case is docketed at the Supreme Court as Norris Cochran, Acting Secretary of Health and Human Services v. Mayor and City Council of Baltimore, No. 20-454.

Baltimore had encouraged the high court not to hear the case, arguing in late December that the ban on abortion referrals would likely be repealed by President Joe Biden, who took office Jan. 20.

In that filing, Baltimore’s counsel of record, Andrew T. Tutt, stated that “this case almost certainly will not reach the merits in this court and any response the city files is likely to be overtaken by events.”

“In light of that overwhelming likelihood, the court should grant a short extension that may obviate any need for the city to respond at all,” added Tutt, of  Arnold & Porter Kaye Scholer LLP in Washington.

Counsel for the then-outgoing Trump administration countered that the administrative law issues surrounding HHS’s rule would not end even if Biden reverses it and permits abortion referrals by taxpayer-funded clinics.

The only difference is that the challenge to the reversed rule would be brought by abortion opponents, wrote acting U.S. Solicitor General Jeffrey B. Wall, then-President Donald Trump’s chief advocate before the high court.

“Even if (Baltimore’s) speculation about the agency’s future actions were to prove true, HHS would need to go through notice-and-comment rulemaking before making any final determination – a process that would itself likely be subject to further litigation,” Wall wrote.

“Thus, even if HHS were to (reverse the rule), the judiciary would need to address the scope of the agency’s authority in this area,” he added. “This court should provide clarity now on the statutory-authority question that has divided the circuits, rather than inviting another round of litigation by granting (Baltimore’s) request.”

The justices did not comment on the presidential transfer issue in agreeing to hear the appeal.

Baltimore Solicitor James L. Shea, the city’s top lawyer, said Tuesday that the controversial rule is bad policy”that infringes on the doctor-patient relationship and limits medical services for low-income pregnant women and girls.

The Richmond, Va.-based 4th Circuit’s decision striking down the rule contradicted a ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals in two cases, one brought by the American Medical Association and the other by the state of Oregon.

The conflict between the circuits increased the likelihood that the Supreme Court would hear the appeals and bring resolution.

The rule implementing Title X of the federal Public Health Service Act has had separate incarnations during the past 35 years depending on which party was in the White House. Republican presidents, including Trump, have more strictly read the law to prohibit Title X clinics from providing referrals for, or counseling about, abortion as a method of family planning.

Democratic presidents have been more permissive, allowing the clinics to provide information, counseling and referrals on pregnancy termination.

In its Sept. 3 decision, the 4th Circuit said the rule restricting abortion referrals violates a provision the Affordable Care Act — spearheaded and signed into law by Democratic President Barack Obama – that prohibits HHS from adopting regulations that interfere with “communications regarding a full range of treatment options” between a doctor and patient. The rule also contravenes a provision of a recent appropriations law directing pregnancy counseling to be “nondirective,” the court said.

In addition, the 4th Circuit said the rule was adopted arbitrarily last year because HHS never explained why it disagreed with “every major medical organization” that opposed the restriction on doctor-patient communications.

“Prohibiting Title X health care providers from referring a woman for an abortion when she requests it, as the final rule does, quite clearly ‘interferes with communications’ about medical options between a patient and her provider,” Judge Stephanie D. Thacker wrote for the 4th Circuit majority.

“What is worse, the final rule requires health care providers to hide the ball from their patients by giving them a list of providers without telling them which ones actually perform abortions,” Thacker added. “Moreover, considering the time-sensitive nature of pregnancy and access to legal abortion, this attempt to hoodwink patients creates unreasonable barriers to appropriate medical care, and impedes timely access to health care services.”

Thacker was joined in the opinion by Chief Judge Roger L. Gregory and Judges Diana Gribbon Motz, Robert B. King, Barbara Milano Keenan, James A. Wynn Jr., Henry F. Floyd and Pamela A. Harris. Judge Albert Diaz wrote a separate opinion concurring in the judgment.

Judges J. Harvie Wilkinson III, Julius N. Richardson, Paul V. Niemeyer, G. Steven Agee, A. Marvin Quattlebaum Jr. and Allison Jones Rushing dissented.

The 4th Circuit rendered its decision in Mayor and City Council of Baltimore v. Alex M. Azar II, Secretary of Health and Human Services, No.19-1614

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