(NRLC) Putting itself at odds with the 9th U.S. Circuit Court of Appeals and opening the way to a possible resolution by the Supreme Court, the full 4th U.S. Court of Appeals on Thursday permanently enjoined the Trump Administration’s “Protect Life” rule which requires recipients of Title X family planning money not to co-locate with abortion clinics or refer clients for abortion as a method of family planning.
The court split 8-6 in upholding an April 2020 decision by a three-judge panel to deny the Trump administration’s motion to stay an injunction issued in February by Judge Richard D. Bennett.
The result is that Maryland remains the only state where enforcement of the rules is enjoined.
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Writing for the majority, Judge Stephanie Thacker, a President Barack Obama nominee, said the administration “failed to recognize and address the ethical concerns of literally every major medical organization in the country, and it arbitrarily estimated the cost” associated with the new regulations.
“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,” she added.
Judge Julius Richardson, nominated by President Donald Trump, wrote a dissenting opinion. He was joined by Judges J. Harvie Wilkinson III, Paul V. Niemeyer, G. Steven Agee, A. Marvin Quattlebaum Jr., and Allison Jones Rushing.
In a 43-page dissent, Judge Richardson patiently laid out the case why the “Protect Life” rule “falls well within HHS’s established statutory authority, and the record shows that it was a product of reasoned decisionmaking.”
In many places, his reasoning tracks that of the 9th Circuit decision written by Judge Sandra S. Ikuta, which allowed the policy to take effect throughout the country.
As NRL News Today noted at the time, Judge Ikuta made short work of the talking point that the rule was a “gag.” Pregnancy counselors just can’t refer or encourage abortion. If abortion providers are “deprived,” it is a decision of their own making.
As, as expected, Planned Parenthood opted out.
Federal funding for family planning was not—as we have written many times, not—cut. It now goes to genuine family planning.
The challenge was brought by the Mayor and City Council of Baltimore, which “argued that the Final Rule is not a cogent product of agency expertise,” Judge Richardson wrote. “The district court agreed with Baltimore and now so does the majority. Both are wrong.”
In my view, the Final Rule falls well within HHS’s established statutory authority, and the record shows that it was a product of reasoned decisionmaking.
The city also maintained that the Final Rule “was promulgated in an arbitrary and capricious manner.” Judge Richardson responded
Again, I disagree. Whatever courts or commenters think about the wisdom of an agency’s regulations are of no moment. We must uphold regulations against allegations of arbitrariness, capriciousness, whimsicality, or temperamentality so long as the record shows that the agency gave a hard look and a reasonable response to the problem at hand. And because I conclude that the agency considered the issues and drew a rational line from the facts it found to the choices it made, I would reject Baltimore’s arbitrary-and-capricious challenge.
In reaching the opposite conclusion, the majority not only thumbs its nose at the Supreme Court but substitutes its own judgment for that of an executive agency accountable to the elected President.
Editor's note: This article was published by the National Right to Life Committee and is reprinted with permission.
