SCOTUS to Hear Abortion Communication Case

The Supreme Court has agreed to decide whether medical providers receiving federal funds may be prevented from referring patients for abortions. In California v. Azar the Ninth Circuit held the federal rule at issue is lawful. In Cochran v. Mayor and City Council of Baltimore the Fourth Circuit reached the opposite conclusion.

Title X provides federal money for family planning but disallows funds to be used in “programs where abortion is a method of family planning.” A 2019 final rule disallows Title X providers to refer patients for abortion, even if they request such a referral. Providers may discuss abortion during “nondirective counseling” but abortion may not be the only option presented. The final rule also requires Title X recipients to physically separate their abortion-related services from their Title X services.

Baltimore, multiple states, and a number of medical non-profits sued the Department of Health and Human Services (HHS) claiming the final rule violates the Administrative Procedures Act because it is arbitrary and capricious and provisions of Title X and the Affordable Care Act (ACA).

Challengers before the Fourth and Ninth Circuits argued the final rule is arbitrary and capricious for multiple and different reasons. The Ninth Circuit rejected all the reasons. The Fourth Circuit agreed with the challengers that it was arbitrary and capricious for HHS to fail to adequately explain its decision “to disagree with comments by every major medical organization regarding the Final Rule's contravention of medical ethics” and inadequately consider the “likely costs and benefits of the physical separation requirement.”  

Regarding statutory arguments, since 1996 Congress has included a rider to its annual HHS appropriations saying “all pregnancy counseling shall be nondirective.” The challengers argue that the final rule directive and violates the statute because it forces providers to steer women away from abortion regardless of their stated desires.

The Second Circuit agreed with the challengers, and the Ninth Circuit did not. According to the Ninth Circuit HHS can reasonably interpret “nondirective pregnancy counseling” to exclude referrals and “nondirective” to mean providing options in a neutral manner, not to present “all possible medical options.” Based on these conclusions, the Ninth Circuit rejected the challengers’ argument that the term “nondirective pregnancy counseling” requires the provision of referrals for abortion on the same basis as referrals for prenatal care and adoption.

The Affordable Care Act (ACA) states that HHS “shall not promulgate” any regulation that “creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care”; “impedes timely access to health care services”; “interferes with communications regarding a full range of treatment options between the patient and the provider”; “restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions”; and “violates the principles of informed consent and ethical standards of health care professionals.”

The Second Circuit concluded that the final rule violates all of the above provisions of the ACA.

Prohibiting Title X health care providers from referring a woman for an abortion when she requests it, as the Final Rule does, quite clearly “interferes with communications” about medical options between a patient and her provider. What is worse, the Final Rule requires health care providers to hide the ball from their patients by giving them a list of providers without telling them which ones actually perform abortions. This is not “full disclosure of all relevant information.” 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. 

According to the Ninth Circuit the provisions of the ACA at issue apply to health insurance not Title X funding decisions.