Health Law Daily Permanent injunction issued preventing enforcement of HHS abortion ‘gag rule’ in Maryland
Tuesday, February 18, 2020

Permanent injunction issued preventing enforcement of HHS abortion ‘gag rule’ in Maryland

By David Yucht, J.D.

A federal judge found that the HHS failed to explain its decision to "disagree" with major medical organizations regarding the abortion gag rule’s contravention of medical ethics.

In issuing a permanent injunction, a federal district court in Maryland found that an HHS rule amendment preventing Title X programs from providing their patients with abortion referral information was arbitrary and capricious, being inadequately justified and objectively unreasonable. In holding that this proposed rule violated the Administrative Procedure Act (5 U.S.C. § 701, et seq.), the court noted that every major medical organization in the U.S. opposed implementation of this rule and there was nearly no professional support for its implementation. The court, however, found that fair notice was given prior to enactment of the rule and the rule did not violate the Constitution or the voluntariness provision of Title X (Mayor and City Council of Baltimore v. Azar, February 14, 2020, Bennett, R.).

Amendment to Title X regulations. In 1970, Congress enacted Title X to fund family planning services. The Act authorized HHS to fund "public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services." None of these funds could be used for abortions. In 2019, HHS proposed a rule, referred to as a "gag rule," prohibiting health professionals in Title X programs from providing their patients with abortion referral information. This rule also established a "separation rule," requiring that all abortion services, and any medical services not complying with this rule, be physically separated from clinics that provide Title X services. Apparently, every major medical organization in the U.S. noted its opposition to the implementation of this rule. These provisions were due to take effect in March 2020.

Baltimore sues HHS. The City of Baltimore challenged this rule in federal court asserting ten causes of action, two of which had already been disposed of by dismissal motions. Two other counts were pending consideration by the U.S. Court of Appeals for the Fourth Circuit. Counts of the complaint pending before the district court here included six claims for relief under the Administrative Procedure Act claiming that the new regulations were in violation of statute and the Constitution and were promulgated in a manner contrary to the procedural requirements of the APA. HHS and the City of Baltimore moved for summary judgment on these pending claims.

Rule arbitrary and capricious. The district court ruled that the subject provisions of the rule were arbitrary and capricious and granted to Baltimore City declaratory relief and a permanent injunction of this rule in the State of Maryland. The court noted that the executive branch of government was not entitled to promulgate administrative rules where an agency’s explanation was contrary to the evidence before it. Here, the court determined that HHS inadequately explained its decision to "disagree" with comments by every major medical organization regarding the rule’s contravention of medical ethics. Additionally, HHS inadequately considered the "reliance interests" that would be disrupted by its change in policy. Moreover, the district court found that HHS inadequately considered the likely costs and benefits of the physical separation requirement.

Rule-making procedures were followed. The court found that HHS complied with the APA’s rule-making procedures when promulgating this rule. Baltimore argued that HHS’s 60-day comment period deprived the public of a meaningful opportunity to comment on the rule. However, the court noted that 60 days was generally accepted as the "reasonable minimum time for comment" on a typical rule. Despite the City’s argument that this rule warranted an extended comment period because of its complexity, there were no cases finding that a 60-day comment period was unreasonable and the court did not have authority to "impose upon" HHS "its own notion of which procedures [we]re best."

The rule did not violate law. The City asserted that the new rule, by preventing the dissemination of abortion information, violated Title X’s voluntariness requirement which required that the use of family planning services must be voluntary. "Individuals must not be subjected to coercion to receive services or to use or not to use any particular method of family planning." However, based on current case law, withholding information from Title X beneficiaries, did not prevent them from making "the informed, voluntary family planning decisions that Congress intended to facilitate." Likewise, this rule did not violate either the First Amendment to the U.S. Constitution or the equal protection component of the Due Process Clause of the Fifth Amendment. The restrictions at issue here were promulgated under a program that prohibited federal funds to be used to refer for abortion, and "[t]he rationality of distinguishing between abortion services and other medical services when regulating physicians or women’s healthcare has long been acknowledged by Supreme Court precedent."

The case is No. 1:19-cv-01103-RDB.

Attorneys: Andre M. Davis, Baltimore City Department of Law, for Mayor and City Council of Baltimore. Tarra Deshields Minnis, Office of the U.S. Attorney’s, for Alex M. Azar, II.

Companies: Mayor and City Council of Baltimore

MainStory: TopStory CaseDecisions CMSNews HealthReformNews MarylandNews

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