Bench Memos

Re: Alito and the Blackwell Case

Let me explain more fully why Alito’s vote in a 1995 case involving Medicaid funding of abortion, Elizabeth Blackwell Health Center for Women v. Knoll, has everything to do with a threshold question of administrative law and nothing to do with abortion.

The procedural background to this case is somewhat complicated but ultimately of little bearing:

In 1994, a revised version of the Hyde Amendment provided, for the first time, that Medicaid funds could be expended for abortion when “the pregnancy is the result of an act of rape or incest.” Under Third Circuit precedent that all the panel members recognized to be binding, states, like Pennsylvania, that participated in Medicaid were required to fund those abortions for which federal reimbursement was available.

Implementing this new version of the Hyde Amendment, the director of the Medicaid bureau at HHS sent a letter directive to state Medicaid directors. This letter said that states could impose “reasonable reporting or documentation requirements … to assure themselves that an abortion was for the purpose of terminating a pregnancy caused by an act of rape or incest,” but could not impose requirements “that deny or impede coverage” for such abortions. The letter specifically said that any reporting requirements must provide for a waiver “if the treating physician certifies that in his or her professional opinion, the patient was unable, for physical or psychological reasons, to comply with the requirement.”

Pennsylvania law did not provide for such a waiver, and providers of Medicaid abortions sued to enjoin operation of the law in the Medicaid context.

The threshold question of administrative law that divided the majority and the dissent was the question whether principles of so-called Chevron deference applied to the HHS action or whether instead so-called Skidmore deference applied. This question, which routinely arose in lots of cases involving review of administrative action, was unsettled at the time, both in the Third Circuit and elsewhere. Justice Scalia has been the most vigorous advocate of an expansive realm for Chevron deference, but his views lost out in the 2001 decision in United States v. Mead, which, in Scalia’s words, made “an avulsive change in judicial review of federal administrative action” by cutting back the realm of cases where Chevron deference applies.

The dissent in the Blackwell case nowhere disputed that if Chevron principles were applicable, the majority opinion was right. Nor did the dissent state that HHS couldn’t adopt the position set forth in the letter directive. It said, rather, that Chevron deference would be accorded to such a position only if HHS adopted it through notice-and-comment rulemaking.

(There’s a second issue in the case involving Pennsylvania’s second-physician certification requirement for cases where abortion is necessary to save the life of the mother. Again, the divide between the majority and the dissent turns on Chevron vs. Skidmore.)

In sum, while this case obviously arose in a context involving abortion, the question that divided the majority and the dissent was a general threshold question of administrative law on which Alito was exactly where Scalia was. There is no basis for inferring from this case anything about how Alito would approach other cases involving abortion—other than that Alito would apply the law neutrally and not indulge his own policy preferences (whatever they might be). That is exactly what everyone should want in a Supreme Court justice.

It is tempting, of course, for those of us strongly opposed to abortion to want justices who will have pro-life values and will indulge those values in their decisionmaking. But that is not what proper judging is about, and seeking such justices would be a foolish strategy. The idea that justices may properly impose their own values and policy preferences is precisely what produced cases like Roe. Moreover, given the strong likelihood that the legal elites will always be to the left of the American people, any efforts to legitimate or excuse that illegitimate idea will help to produce similar usurpations in the future.

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