En Banc Fourth Circuits Blocks Abortion Gag Rule in Maryland

The Lewis F. Powell, Jr. Courthouse, home of the Fourth Circuit, in Richmond, Va. (Acroterion via Wikipedia)

RICHMOND, Va. (CN) — The Trump administration’s rule barring clinics that receive federal funding from referring women for abortions cannot be enforced in the state of Maryland, the full Fourth Circuit ruled Thursday.

In a 9-6 decision, the en banc court found that the Trump administration’s implementation of its rule undermining the long-standing program known as Title X is both arbitrary and punitive.

Health and Human Services Secretary Alex Azar finalized the rule at issue last year, prohibiting health care providers like Planned Parenthood and others from taking federal funding so long as they referred their patients to abortion services.

The Title X program pours hundreds of millions of federal dollars into family planning centers and health care facilities throughout the U.S., which overwhelmingly benefit low-income families and women.

Baltimore’s city council and mayor sued Secretary Azar in April 2019, seeking an injunction blocking the rule on basis that it violated the First Amendment and the Fifth Amendment’s equal protection clause, and is “objectively unreasonable.”

A federal judge in Maryland issued an injunction against the rule, which a divided Fourth Circuit panel stayed last year. The full Richmond, Virginia-based appeals court then agreed to rehear the case.

U.S. Circuit Judge Stephanie Thacker, a Barack Obama appointee, succinctly explained the Fourth Circuit’s decision to side with the city officials in Thursday’s ruling, writing that the very act of prohibiting a Title X health care provider from referring a woman for an abortion when she requests it “quite clearly ‘interferes with communications’ about medical options between a patient and her provider.”

Under the Trump administration rule, doctors were asked to “hide the ball” when providing a list of specialists or physicians to a patient for referral, the majority ruling states.  

“This is not ‘full disclosure of all relevant information,’” Thacker wrote, citing federal health care law. “Moreover, considering the time-sensitive nature of pregnancy and access to legal abortion, this attempt to hoodwink patients creates ‘unreasonable barriers’ to ‘appropriate medical care,’ and ‘impedes timely access’ to health care services.”

Thacker, writing for the nine-judge majority, noted that the so-called abortion gag rule is strongly opposed by the American Medical Association as a violation of ethical standards, along with 20 other entities that filed amici briefs.  

U.S. Circuit Judge Julius Richardson, appointed by President Donald Trump, was one of six Fourth Circuit judges to dissent. He argued that the administration’s rule was established within the bounds of good reasoning.

“We do not say that an expert swimmer who sees but walks past a drowning person has in any sense impeded or interfered or created unreasonable barriers to that person’s rescue,” Richardson wrote.

He added that the Health and Human Services Department can choose to fund any project it sees fit and service providers have no “preexisting right” to dispute or select how public funding is distributed.

But Thacker called this hypothetical from Richardson “distressingly poignant.”

“This case is not about a failure to act. Rather, this case is about placing limits on the ability to act, that is providing funds on which Title X providers rely to continue serving their low-income patients, but with ethically questionable strings attached,” she said.

The judge added, “Therefore, rather than the expert swimmer merely failing to act by walking past the drowning person, this case is more akin to the swimmer jumping in to offer aid to the person, but instead, only assisting the person halfway to shore, or, worse yet, blocking the person from being rescued by someone else.”

A representative from the Health and Human Services Department did not immediately return a request for comment Thursday.

The Fourth Circuit’s ruling splits with a recent decision from the Ninth Circuit. In February, the en banc San Francisco-based appeals court ruled 7-4 to uphold the abortion gag rule. Given the circuit split, it is fairly likely that the issue will eventually be heard by the U.S. Supreme Court.  

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