Bench Memos

Law & the Courts

Fourth Circuit Abortion Antics

Over the past two decades, the Fourth Circuit has gone from being arguably the best federal court of appeals to being perhaps the very worst.

Yesterday’s en banc ruling in Mayor and City Council of Baltimore v. Azar marks another low. Title X of the Public Health Service Act authorizes the Department of Health and Human Services to make grants to support voluntary family planning but prohibits grant funds from being used in “programs where abortion is a method of family planning.” By a vote of 9 to 6, the court ruled that the HHS’s regulations implementing Title X are unlawful. In so ruling, the court creates a conflict with the en banc Ninth Circuit’s ruling in February in favor of the regulations.

An excerpt from the introduction of Judge Richardson’s dissent (joined by the five other dissenters):

In my view, the Final Rule falls well within HHS’s established statutory authority, and the record shows that it was a product of reasoned decisionmaking. At the outset, Baltimore’s statutory challenge faces a significant problem: The Supreme Court has already ruled that the regulations fall inside the scope of Title X’s broad mandate. The ‘new’ Rule substantially returns the Title X regulations to the version that HHS adopted in 1988, and which the Supreme Court upheld as a permissible interpretation of Title X in Rust v. Sullivan (1991). Rust remains binding precedent, and the relevant text of Title X has not changed. In response to this roadblock, Baltimore asserts that two post-Rust congressional enactments require us to deviate from the Supreme Court’s holding. But neither renders HHS’s interpretation unreasonable. So precedent dictates the same result for the same Chevron challenge to the same requirements.

Baltimore’s arbitrary-and-capricious challenge similarly fails. In Rust, the Supreme Court rejected an arbitrary-and-capricious challenge to remarkably similar regulations, justified on remarkably similar rationales. Yet, in the majority’s view, HHS capriciously dismissed commenters’ ethical objections to the referral regulations and arbitrarily estimated the costs of the separation requirement. Again, I disagree. Whatever courts or commenters think about the wisdom of an agency’s regulations are of no moment. We must uphold regulations against allegations of arbitrariness, capriciousness, whimsicality, or temperamentality so long as the record shows that the agency gave a hard look and a reasonable response to the problem at hand. And because I conclude that the agency considered the issues and drew a rational line from the facts it found to the choices it made, I would reject Baltimore’s arbitrary-and-capricious challenge.

In reaching the opposite conclusion, the majority not only thumbs its nose at the Supreme Court but substitutes its own judgment for that of an executive agency accountable to the elected President. Then, brushing aside the traditional limits on our remedial authority, the majority enjoins enforcement of the entire Final Rule throughout all of Maryland. And since we are the first Circuit bold enough to skirt Rust and enjoin the Final Rule, our decision rips open a circuit split. [Citing contrary Ninth Circuit en banc ruling.] Today’s decision ignores text, abandons administrative-law principles, and forsakes the limited role of courts, particularly inferior ones, in our constitutional structure.

Unable to hide its bias, the Fourth Circuit majority even refers to the provisions at issue in Rust as “the Gag Rule provisions”: “Parts of the Final Rule essentially revive the Gag Rule provisions of the 1988 Rule.” It’s bad enough that any federal judge would contend that a refusal to provide funding amounts to a “gag” and would echo the brazenly political epithet of the rule’s opponents. But it’s even worse here, for, as Richardson points out (just as Ninth Circuit judge Sandra Ikuta did in her majority), the new HHS rule differs from the 1988 rule in that “it permits Title X providers [to use Title X funds] to provide nondirective pregnancy counseling that includes discussion about abortions”—and thus eliminates the very provision that had been mischaracterized as a “gag.”

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