The U.S. Supreme Court should hear appeals backing HHS rules that block recipients of Title X family planning funds from performing or making referrals for abortions, a group of pro-life obstetricians and gynecologists and a Christian medical association have said.
The Supreme Court is considering whether to hear appeals seeking to overturn an appellate court’s ruling against the Protect Life Rule, created by the Trump administration’s Department of Health and Human Services. The rule prohibits recipients of Title X family planning funds from referring for or performing abortions. It requires Title X fund recipients to be both physically and financially separate from facilities that perform abortions.
“The Supreme Court has already recognized that the federal government has authority to prevent Title X funds from being used for abortion. The 4th Circuit chose instead to rely on the preferences of pro-abortion medical associations,” John Bursch, Alliance Defending Freedom senior counsel and vice president of appellate advocacy, said Nov. 9. “The Supreme Court should take this case and affirm that HHS has the authority to issue a rule that the high court already deemed constitutional.”
The Alliance Defending Freedom legal group filed the Nov. 9 amicus brief on behalf of the American Association of Pro-Life Obstetricians & Gynecologists, which claims 4,000 OB-GYN members and associates, and the Christian Medical and Dental Associations, which claims 20,000 members and 329 chapters in the United States.
The case, Azar v. Mayor and City Council of Baltimore, went before the 4th Circuit Court of Appeals. The Sept. 3 decision split 8-6, with the majority opposing the rule. The majority decision said the Department of Health and Human Services “failed to recognize and address the ethical concerns of literally every major medical organization in the country” and “arbitrarily estimated the cost” of implementing a section of the rules.
The amicus brief, however, argued that the final HHS rule essentially revives regulations previously approved by the Supreme Court in its 1991 case Rust v. Sullivan, which barred abortion counseling as a method of family planning in federally-funded facilities.
The brief further argued that the Fourth Circuit wrongly assumed that these prominent medical associations “promote objective truths, rather than abortion advocacy.”
One such organization, the American Medical Association, has a litigation center that promotes abortion. It has advocated unencumbered access to abortion.
“But this Court has never acquiesced to the AMA’s policy views simply because it is a significant medical association,” the amicus brief continued. “Quite the opposite, the AMA’s pro-abortion policy positions have not fared well in this Court, which rejected the AMA’s call to force a pro-life pregnancy clinic in California to advertise for the abortion industry based (in part) on its dubious view of medical ethics.”
The court has previously rejected the American Medical Association’s denial of pro-life sidewalk counselors’ First Amendment right to speak in public byways outside abortion clinics.
The Protect Life Rule has withstood other challenges.
On Feb. 24, the 9th Circuit Court of Appeals ruled 7-4 to uphold the rule. The majority opinion, written by Judge Sandra Ikuta, cited the 1991 Rust v. Sullivan case and said the Trump Administration rule was “less restrictive in at least one important respect” than the previous rule which had been upheld.
The Protect Life Rule does not reduce the amount of available Title X funding, but clarifies eligibility to receiving the funding. Title X is a federal program created in 1965 that subsidizes family-planning and preventative health services for low-income families, including contraception, breast and cervical screenings, and HIV testing. It has been frequently updated and subject to new regulations. Title X does not pay for abortions, but recipients have in the past been able to refer patients for abortion.
“Non-directive counseling” about abortion is still permissible under the new rules, which pro-life advocates have praised as a commonsense way to ensure enforcement of already-existing rules against taxpayer money being used for abortions.
Abortion advocates have characterized the restrictions as a “gag rule.” They said the rule for physical separation would have required many providers to change locations, conduct expensive remodels, or shut down.
After the new rules were announced, Planned Parenthood said it was exiting the Title X program in order to continue performing abortions. It is the largest abortion provider in the U.S., with some 300,000 performed every year. Its political arm is deeply influential.
Planned Parenthood had been receiving about one-fifth of the total amount of Title X funds distributed, and withdrawing from the program means a $60 million cut in federal funding for the organization each year.
Planned Parenthood still receives roughly $500 million annually in Medicaid reimbursement.