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Health Legal Disputes to Live On Despite HHS Bid to Skirt SCOTUS

May 10, 2021, 9:31 AM

The Biden administration’s efforts to quash litigation that’s pending at the Supreme Court over Trump-era health policies may only delay judgment day.

The politically charged cases over over how federal funding for family planning services can be spent and whether states can force Medicaid recipients to work for their benefits are likely to come back before the court in the future.

In rolling back Trump-era rules and revoking prior approvals, the Biden administration argues there’s no longer live fights for the high court to settle. But some conservative groups like Alliance Defending Freedom say these administrative actions are likely to flip the script in litigation.

President Joseph Biden has been aggressively trying to reverse the policies of his predecessor. Biden’s team has already begun to review a variety of proposed and final health-related rules that were released in the waning days of the Trump administration. The new administration also moved to revoke a number of state Medicaid waivers the previous administration had approved.

“We seem to be in an era where no matter which side it is, the other side is going to court asking for injunctions to stop administrative actions, and we’re going to be stuck doing that until courts give clarity about what rules get the green light and what rules don’t,” said John Bursch, vice president for appellate advocacy for the Alliance Defending Freedom, a Christian nonprofit advocacy group.

Title X

One issue Bursch said the court should clarify is the lawfulness of a 2019 rule that prevents health providers from referring women for abortions if they receive federal funding for family planning services.

Congress created the federal grant program under Title X of the Public Health Service Act in 1970 to help low-income or uninsured individuals access family planning and preventive health services.

The Supreme Court agreed in February to hear three consolidated cases testing the rule, which also requires providers to physically separate any abortion services to another facility. However, the parties now are asking for the court to dismiss the cases since the Department of Health and Human Services is planning to finalize a new rule in the fall.

Alliance Defending Freedom is representing the American Association of Pro-Life Obstetricians and Gynecologists and the other anti-abortion providers groups that have asked to intervene to defend the rule.

If the Supreme Court decides to dismiss the cases, Bursch said the dispute could make its way back to the court in the reverse posture with anti-abortion groups like the ones he’s representing challenging the Biden administration’s actions in rewriting the rule.

But a dismissal now “doesn’t provide clarity going forward for future administrations and it also makes that litigation more complicated,” he said, noting the differing appeals court decisions on this issue.

The Fourth Circuit upheld a lower court decision striking down the rule, but the Ninth Circuit said the rule is lawful. Still, some legal scholars say that doesn’t matter.

“It doesn’t make any sense to resolve it,” said Elizabeth Sepper, a professor at the the University of Texas at Austin School of Law and a scholar on religious liberty, health law, and equality.

“Those rules aren’t going to be in place even if the court says as it said in Rust v. Sullivan that some level of restriction on providers’ speech rights is allowed in the Title X program.”

Medicaid Work Rules

Another issue before the court involves two consolidated cases disputing Trump administration approvals of work requirements for Medicaid beneficiaries in Arkansas and New Hampshire.

The Department of Health and Human Services already has notified the states that it’s withdrawing its approvals, and the court canceled arguments that were planned for March.

But the revocations are not final, and Arkansas Attorney General Leslie Rutledge argued the court needs to resolve the question over whether they’re permissible before it can decide whether the government reasonably exercised its discretion in rescinding them.

“What’s tricky about all of these cases is that they are cases where the new administration is charting a new path, but hasn’t yet brought the truck into the dock,” said Nicholas Bagley, a professor at the University of Michigan Law School. “It’s still trying to work its way through the administrative processes.”

With the Medicaid work requirement cases, the Supreme Court is taking a kind of wait-and-see approach, he said. The court canceled oral arguments but has yet to decide whether to toss the appeals court decisions as the Justice Department requested or keep them on the books.

Like the case over the Title X rule, the dispute could come back before the court in new challenges to the Biden administration’s decision to revoke the waivers.

“Thousands of hours and millions of dollars in state resources were spent trying to get these waivers secured, and they were undone through the stroke of a pen, which may or may not violate the Administrative Procedure Act,” said Chase Martin, legal affairs director at the Foundation for Government Accountability, a nonpartisan nonprofit that supports work requirements for Medicaid.

“I wouldn’t be surprised to see state attorneys general or governors pushing back through litigation and fighting back against this unilateral action by Biden to rescind these important waivers,” Martin said.

Public Charge

The Biden administration succeeded in its bid to keep the court out of the fight over a Trump administration rule that allows the federal officials to deny green cards to immigrants who are likely to receive government assistance like Medicaid in the future and become what’s known as a “public charge.”

Health scholars argued the rule was a public health threat because it discouraged immigrants with serious health needs from seeking treatment, leading to higher health-care costs.

The court dismissed the case March 9 after originally agreeing in February to hear the dispute. The Department of Homeland Security had voluntarily dropped the Trump administration prior appeal and on March 15 revoked the rule.

A group of states led by Texas asked the court to intervene, arguing the DHS had prevented enforcement of the rule while insulating the district court’s judgment from review and that it rescinded the rule without following the proper requirements of the Administrative Procedure Act.

In an April 26 order, the justices left the door open for a new challenge. The court said the states could bring their arguments to the district court and could seek review of that decision in the court of appeals or a renewed application to the Supreme Court.

Health scholars say it’s normal for cases to come back before the court in a different posturing when there’s a change in administration.

“This is the normal to and fro and also normal for opponents of the incoming administration to try to keep the case alive,” said Sara Rosenbaum, a health law and policy professor at George Washington University. “This may be painful, but it’s normal.”

The cases are Am. Med. Ass’n v. Becerra, U.S., No. 20-429 and Cochran v. Gresham, U.S., No. 20-37.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Brent Bierman at bbierman@bloomberglaw.com

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