In a 9-6 decision Thursday, the US Fourth Circuit Court of Appeals upheld a lower court’s permanent injunction against a Health and Human Services (HHS) rule that would prohibit doctors and clinics that participate in the Title X program from referring patients for an abortion, even if that is what the patient wants.
The so-called “gag rule” was promulgated by HHS last year, and would prohibit the use of Title X funds “to perform, promote, refer for, or support abortion as a method of family planning.” It also required providers who perform abortions and who also receive Title X program grants to keep the Title X funds separate from funds that pay for abortion services.
The mayor and city council of Baltimore filed a lawsuit against HHS, claiming the rule violated the Administrative Procedure Act because it is capricious, arbitrary, and not in accordance with the law. The district court first granted a temporary injunction against the rule, finding that the rule was likely not in accordance with the law, and later granted a permanent injunction on the grounds that the rule was arbitrary and capricious.
Writing for the majority in the Fourth Circuit, Judge Stephanie Thacker held that in issuing the rule, HHS disregarded “comments by every major medical organization regarding the Final Rule’s contravention of medical ethics” and did not adequately consider the cost/benefit analysis of the funding separation requirement. In a dissent joined by five judges, Judge Julius Richardson wrote that the rule fell well within HHS’ mandate under Title X and that the rule was the “product of reasoned decision-making” and the agency was therefore owed judicial deference.
The decision by the Fourth Circuit sets up a possible Supreme Court case, in light of the fact that the Ninth Circuit upheld the rule in a decision in February. Judge Thacker noted the Ninth Circuit’s decision in her opinion, stating that it was “unpersuasive and inapposite” because that circuit “did not have the full administrative record before it” and that “[it] failed to recognize that HHS did not cite any evidence supporting its conclusion regarding medical ethics.”