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Biden’s Abortion Gag Rule Reversal Faces Early Legal Test

Oct. 26, 2022, 8:45 AM

A coalition of Republican attorneys general Thursday will try to convince the Sixth Circuit to block a Biden administration rule that restored funding for providers that made abortion referrals and failed to separate family planning and abortion services.

In October 2021, the Health and Human Services Department reversed a Trump-era policy, eliminating sections of Title X that tightened participation requirements for the only federal program that helps pay for family planning services for low-income people.

The litigation over the Biden rule’s validity is at the preliminary injunction stage, which means it will be a while before knowing if it passes muster. The US Court of Appeals for the Sixth Circuit’s decision will determine which groups can apply and qualify for the limited federal funds while the case proceeds.

There’s lots of competition for that money, and the Biden rule reopened the playing field for providers that were shut out by the Trump rule’s requirements, Robin Summers told Bloomberg Law. Summers is vice-president and senior counsel at the National Family Planning & Reproductive Health Association.

Carolyn McDonnell, litigation counsel at anti-abortion group Americans United for Life, said the new rule narrows opportunities for other family planning service providers, including states like Ohio. It also suffers from the same defect that the Trump rule was intended to fix—it fails to take into account Title X’s Section 1008, which prohibits using federal family planning funds to subsidize abortion, she said.

Familiar-Looking Issue

The Trump rule imposed two new requirements on family planning providers applying for federal grant funds: the nonreferral provision—termed an abortion “gag rule” by the challengers—and the separation rule.

It sparked litigation, which ended in a stalemate. The US Supreme Court granted review to resolve a circuit split over its legality, but the top court dismissed the case after President Joe Biden’s HHS issued a notice of proposed rulemaking.

The Biden administration published its final rule in October 2021, essentially readopting the version that had been in place since 2000.

The new rule spawned new litigation, but while multiple parties challenged the Trump rule in various lawsuits throughout the US, the case brought by Ohio and 11 other states is the only one seeking to block the Biden rule’s enforcement.

The states argued that the Biden rule is arbitrary and capricious because the HHS didn’t consider other alternatives before giving up on the Trump rule. The agency also relied on “flawed data and illogical reasoning” when it found the Trump rule had caused “negative public health consequences,” they said.

A federal trial court denied the states’ motion to halt the Biden rule pending litigation. Judge Timothy S. Black, of the US District Court for the Southern District of Ohio, found they weren’t likely to win on the merits, wouldn’t be irreparably harmed by the new rule, and that blocking the rule “would perpetuate well-documented harm to the public.”

The states immediately took the case to the Sixth Circuit, which denied an injunction pending appeal. The prospect that the HHS might award funding to other applicants, leaving the states with fewer Title X dollars, was “too speculative” to satisfy the states’ burden of proof on the harm element, the appeals court said.

Conscience Rights Implicated

The issue is a “huge” one because it implicates conscience rights, AUL’s McDonnell told Bloomberg Law.

Myriad federal laws protect health-care providers’ and taxpayers’ conscience rights by expressly precluding the use of federal money to fund abortions, she said. Additionally, the 2021 rule is plainly contrary to Title X’s own conscience rule, Section 1008, she said.

McDonnell said the Trump rule was a necessary reinterpretation of Title X’s program participation requirements, as many federal conscience protections weren’t in place when the rules were adopted in 2000. This interpretation protects the rights of pro-life taxpayers at the administrative level, she said.

The oral arguments, however, probably will be limited to the harm issue, McDonnell said.

McDonnell expects the states to argue on this point that: they will face increased competition for federal family planning money; they will suffer reputational injury if they don’t get the money because they won’t be able to provide an acceptable level of family planning services; and that the Biden rule puts the government’s “stamp of approval” on abortion.

AUL’s in-house attorneys filed the amicus brief supporting the states’ argument.

APA Issues

Summers stressed that the Biden rule is different from the Trump rule, and that the adoption process used by the Trump administration didn’t satisfy the Administrative Procedure Act’s requirements.

The Trump rule didn’t comport with the law because it was “completely contrary” to Title X’s fundamental purpose of providing funding so that low-income Americans can access family planning services, Summers said. It also wasn’t supported by the evidence considered by the agency before approving it, she said.

Biden’s HHS held hearings and gathered evidence before concluding that it needed to undo the 2019 changes in order to restore provider networks whose absence had harmed patients, Summers said. About 1,000 providers—one-quarter—lost access to Title X funds because of the Trump rule, leaving about 1.5 million people without access to the services, she said.

The two months that the Biden rule was in effect in 2021 saw an uptick in the number of service sites, but rebuilding is going slowly because there’s not enough money to go around, Summers said. Title X has been “significantly underfunded” for some time, she said. The HHS awarded $16.3 million to 31 grantees in May.

Regardless of how the appeals court rules, the case most likely will go back to the district court for a trial on the merits of whether the Biden rule was adopted in accordance with APA requirements, both attorneys said. It’s possible that either side could ask the US Supreme Court to review, they said.

The states that joined Ohio in the suit are Alabama, Arizona, Arkansas, Florida, Kansas, Kentucky, Missouri, Nebraska, Oklahoma, South Carolina, and West Virginia. The Ohio Attorney General’s Office is lead counsel for the states.

Additionally, Montana, Alaska, Georgia, Idaho, Indiana, Louisiana, Mississippi, South Dakota, and Texas joined in a friend of the court brief supporting the states’ request to block the Biden rule. Montana’s Attorney General’s Office is lead counsel.

New York, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia jointly filed an amicus brief supporting the HHS. The New York Attorney General’s Office serves as lead counsel.

The US Department of Justice represents HHS Secretary Xavier Becerra.

Zuckerman Spaeder LLP represents the group, whose brief supports the government.

The case is Ohio v. Becerra, 6th Cir., No. 21-4235, oral argument scheduled 10/27/22.

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; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com