HHS’s Abortion ‘Gag’ Rule Front and Center at Fourth Circuit

May 7, 2020, 9:08 PM

HHS and Baltimore faced tough questioning from the Fourth Circuit during oral arguments Thursday in a case testing a rule prohibiting family planning service providers who receive federal money from referring patients for abortion.

The court’s decision will be consequential, as Baltimore receives at least $1.4 million in federal money each year to fund its family planning services. The rule threatens to strip it of those funds, which would preclude it from offering the services.

Other family planning providers that previously participated in the Title X program have dropped out because they aren’t able to comply with the new rule.

Baltimore challenged the Health and Human Services Department rule, which requires providers to physically and financially separate their counseling services from abortion services, and prohibits abortion referrals. It implements Title X, the only federal program covering family planning.

A lower court blocked the Health and Human Services Department from enforcing the rule in Maryland. HHS asked the U.S. Court of Appeals for the Fourth Circuit to review that decision.

In an unusual move, the court agreed to skip the normal three-judge hearing and hear the appeal en banc. The court heard the arguments remotely, with the attorneys appearing electronically.

No Tipping

Most of the the Fourth Circuit’s judges didn’t tip their hands as to how they will decide the appeal, but some pressed the parties to justify their clients’ positions more strongly than others.

Judge Stephanie D. Thacker, for example, asked Justice Department lawyer Jaynie Lilley for the evidence showing HHS acted reasonably when it decided to adopt the rule. Thacker specifically asked about studies justifying HHS’s estimate that the physical separation requirement would cost providers only $30,000.

That turned out to be “woefully inadequate,” so how did HHS reach that figure, Thacker asked.

The judges also engaged Lilley in a discussion of whether HHS fully considered if the nonreferral rule would require doctors to violate medical ethics by preventing them from talking to patients about all available treatment options.

Did the agency hear from any professional medical organizations that took the view that the rule wasn’t inconsistent with medical ethics, Thacker asked.

Lilley replied that Rust v. Sullivan, a 1991 U.S. Supreme Court decision that upheld a similar Reagan-era rule, recognized that it wouldn’t lead to ethical violations.

Baltimore’s attorney, Andrew Tutt of Arnold & Porter Kaye Scholer LLP, later took issue with that statement. Rust said the rule was consistent with medical ethics, but didn’t hold that it wouldn’t compromise doctors’ ethical obligations, he said.

Judge J. Harvie Wilkinson III argued that the rule shouldn’t “rise or fall” on the medical ethics question. He appeared inclined to allow the rule to take effect.

Wilkinson suggested the rule furthers a “grand compromise” over abortion reached by Congress in the Hyde Amendment: Women can exercise their right to abortion, but taxpayers don’t have to pay for the procedures. He expressed concern that prohibiting the HHS from curbing abortion referrals would cut out this “middle ground.”

Tutt disagreed. Baltimore doesn’t provide or pay for abortions, he said. The law is best read as barring the use of taxpayer money to pay for procedures, not counseling, he said.

Other judges questioned if the rule violates the Affordable Care Act, which prohibits government interference with the doctor-patient relationship, and the nondirective mandate, which required providers to give patients complete, medically accurate information about various pregnancy options without directing them to any particular one. Both were enacted after the Rust decision.

The judges also questioned whether the lower court’s injunction covering the entire state is too broad, as Maryland was a plaintiff in a case in which the Ninth Circuit recently upheld the rule.

A lower federal court said HHS acted arbitrarily and capriciously and that the final rule was “inadequately justified and objectively unreasonable.”

HHS didn’t adequately explain why it disagreed with the many professional medical organizations that said the rule would require doctors to violate medical ethics, didn’t consider the disruption its policy change would cause, and didn’t consider how much it would cost facilities to comply with the physical separation requirement, the lower court said.

The case is Mayor & City Council of Balt. v. Azar, 4th Cir. en banc, No. 19-1614, oral argument 5/7/20.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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