(Posted September 3, 2020) The en banc Fourth Circuit Court of Appeals today decides an appeal involving the use of Title X funds for family-planning services. The case is City of Baltimore v. Azar. By an effective vote of 9-6, the full court affirms a permanent injunction against the current interpretation of statutory language by the Department of Health and Human Services.

Today’s decision is a significant victory for pro-choice advocates, as it rejects the HHS interpretation, which had sharply constrained healthcare providers from providing patients with information about abortions. Judge Thacker authors today’s majority opinion, and she’s joined by the chief judge and Judges Motz, King, Keenan, Wynn, Floyd, and Harris. Judge Diaz writes a separate concurrence, agreeing with the majority’s finding that the interpretation violates two provisions of the Affordable Care Act. He stops short of his colleagues’ holding that the interpretation was arbitrary and capricious.

Judge Wilkinson pens a short dissent, but he leaves the heavy lifting to Judge Richardson, who explains in 55 pages his disagreement with the ruling. The dissent concludes that the HHS rule fits within the discretion and expertise of the agency, and is consistent with an interpretation that the Supreme Court has already approved.

The majority and dissent run to 124 pages, and it’ll take me a bit of time to read and digest everything. I’ll endeavor to update this analysis after I do that.

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The majority first agrees with the Maryland district court that HHS had disagreed with “comments by every major medical organization” about the interpretation’s “contravention of medical ethics.” After receiving these comments, HHS stated that it disagreed with them. That’s not good enough, the majority holds: “An agency, although entitled to deference, cannot simply state it ‘believes’ something to be true – against the weight of all the evidence before it – without further support.” Without a sufficient explanation, that looks arbitrary to the court. The majority acknowledges a contrary ruling from earlier this year from the Ninth Circuit, but finds it “unpersuasive and inapposite.”

The court also finds that the HHS interpretation, by requiring a physical separation between a Title X program and other services. This, as a practical matter, requires a form of medical social distancing: The provision of abortion services must be in a separate building from the place where healthcare staff provide Title X services. HHS had estimated that the typical cost of doing that would be about $30,000, but the administrative record indicates that that cost would be far higher, such as one estimate of $625,000. HHS merely nodded at the lower figure without ensuring that it reflected reality.

The majority affirms the permanent injunction on another ground: violation of two provisions in the ACA. The first requires that “all pregnancy counseling shall be nondirective.” That is, the doctor has to inform a patient about her options without steering her in any particular direction. This carries our prior law that federal funds can’t be used to provide abortions; the doctor simply gives the patient a choice. But the HHS interpretation “requires a doctor to refer a pregnant patient for prenatal care, even if she does not want to continue the pregnancy, while gagging her doctor from referring her for abortion, even if she has requested specifically such a referral.”

The second ACA provision is called the noninterference mandate, which forbids HHS to create barriers to a patient’s receipt of health care. The HHS interpretation forbids healthcare providers to refer a patient to an abortion provider, or even tell her which providers on a list perform the procedure. Judge Thacker calls this an “attempt to hoodwink patients.”

The majority thus affirms the injunction striking down the interpretation throughout the State of Maryland, where the suit was brought. It declines HHS’s suggestion that a more limited ruling, covering only one aspect of the interpretation, is appropriate, despite the presence of a severability clause in the interpretation. It also agrees that the appropriate geographic scope of the injunction is the entire state, rather than just in Baltimore. It also turns down Baltimore’s request to expand the injunction to a nationwide ban, since the district court didn’t order that and the City didn’t cross-appeal.

The district court had granted a temporary injunction and then a permanent one. HHS separately appealed both rulings. Today the appellate court dismisses the appeal of the first order as moot.

On to the dissents. Judge Wilkinson points out that the purpose of the Public Health Service Act expressly excludes funding any programs where one of the family-planning methods is abortion. The HHS interpretation, he note, carries out that statutory mandate. The language is ambiguous enough that the Department can exercise its judgment about how best to carry it out; he finds no fault with the way that HHS has proceeded. And judicial deference to an administrative agency’s discretion within the area of its expertise is well-established in our jurisprudence.

Judge Wilkinson describes the statute as “a statutory compromise through the political process.” That is, Congress tried to balance the interests of the two sides of the abortion debate, and did so by allowing women to have abortions but not permitting the federal government to pay for them. “Like all compromises, this one may not be fully acceptable to the heartfelt and passionate views on either side of this debate. But perhaps it is for that very reason that the compromise on federal funding should be respected.”

Judge Richardson goes next. (Although this is the primary dissent, Judge Wilkinson’s short statement comes first because he’s senior to Judge Rushing.) When you read his opinion, you’ll note that he writes in an understated way, making points without much in the way of linguistic fireworks. You might contrast that with Judges Wilkinson and Niemeyer when they’re raging, or Judge Gregory when he’s waxing eloquent. The dissent is particularly well-written and easy to follow – probably even for nonlawyers.

Judge Richardson points to a 1991 SCOTUS ruling that approved a limited interpretation of the language here, to permit just this kind of restriction. The majority dealt with this precedent by pointing out that the two ACA provisions hadn’t existed back in ’91; Judge Richardson replies that “neither renders HHS’s interpretation unreasonable.” He urges deference to HHS’s educated interpretation, thus preserving Chevron deference and avoiding a new circuit split. (Of course, this is how we get SCOTUS cert grants.)

What follows is a methodical analysis of the text of the statute and interpretation in which the dissent concludes that the latter was a perfectly permissible reading of the former. Counseling isn’t the same as a referral, so the HHS view of “nondirective counseling” doesn’t have to include referrals to other providers. There’s a big difference between imposing a barrier to healthcare options and declining to spend public funds on them.

As with many other hot-button issues like abortion, your view of today’s opinions, including the reasoning employed by each author, will likely depend on how you feel about the abortion issue. Everyone, including judges and lawyers, is susceptible to confirmation bias, and depending on which side of that aisle you are, you’ll find yourself agreeing with the majority or the dissent. But both of these approaches are carefully reasoned; to a truly dispassionate and nonaligned reader, both sides make sense. Both have sound points. And both views will soon find their way to One First Street for an eventual decision.