Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—September 3

The Department of Health and Human Services building in Washington, D.C., August 5, 2021 (Brent Buterbaugh/National Review)

2020—In its steady decline over two decades from being arguably the best federal court of appeals to becoming perhaps the very worst, the Fourth Circuit hits a new 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 en banc court rules (in Mayor and City Council of Baltimore v. Azar) that the HHS’s regulations implementing Title X are unlawful. Never mind, as Judge Julius Richardson observes in dissent, that 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).”

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