Recently the U.S. Supreme Court agreed to hear an appeal from a decision from the 4th U.S. Circuit Court of Appeals in Baltimore, Maryland, which struck down a pro-life, Trump-era regulation from the U.S. Department of Health and Human Services (HHS) involving Title X family planning grants. The rule prohibited grant recipients from referring clients for abortions and required separate physical facilities and accounting for grant recipients who perform abortions and provide federally funded family planning services.
Title X is a federal grant program created by Congress in 1970 in which qualified state and private agencies apply for and receive funds to provide counseling, contraceptives and preventive health services for needy communities. From the very beginning, the law explicitly required that no grant funds be used to support abortion.
The specific language contained in Section 2008 of Title X, “None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning,” is left up to HHS to interpret and apply via regulations, subject to judicial review or further clarifications passed by Congress.
In keeping with the intent of Congress to prevent Title X funds from being used to support abortions, HHS in 2019 passed the rule at issue in the appeal. When the regulation was finalized, abortion sellers such as Planned Parenthood, which benefitted from the program to the tune of approximately $60 million per year, chose to opt out of Title X rather than comply with the regulation’s requirements.
These lawsuits followed.
The Baltimore case has been consolidated with two other related cases the high court has agreed to hear together.
Last year, the 9th U.S. Circuit Court of Appeals in San Francisco upheld the regulation in a separate challenge. The 4th Circuit decision created what is called a “circuit split” on the issue, meaning the regulation would be interpreted different ways in different parts of the country. A circuit split creates confusion when a federal law is not interpreted the same across the states located in various federal circuits. The Supreme Court typically steps in at that point to resolve the split and provide a decision that will apply uniformly across the nation.
Title X affects many communities across the nation. In 2019, the most current year for which data is available, the federal government funded “100 grants to 47 state and local health departments and 53 nonprofit family planning and community health agencies. Title X funds supported a network of 3,825 service sites operated by either grantees or 1,060 subrecipients in the 50 United States, the District of Columbia, and eight U.S. territories and Freely Associated States.”
Although the requirements of Congress related to Title X cannot be revoked except by another Act of Congress, a federal agency regulation such as the 2019 HHS rule can be revoked by subsequent action of the same agency. Elections have consequences, and the impact of the most recent one may affect the HHS regulation, even apart from what the Supreme Court may do. President Joe Biden, who has expressed support for the federal funding of abortion, has tasked his HHS with reviewing the 2019 rule and possibly revoking it.
Even if the rule is ultimately revoked by the Biden administration, a decision from the Supreme Court in the meantime upholding its legality will serve the purpose of encouraging future pro-life administrations to reinstate the rule.
The Supreme Court hasn’t announced its oral argument calendar for April and May yet, so it is not known whether these cases will be heard and decided this term, which ends in June, or the next, which begins in October.
The consolidated cases are American Medical Assn. v. Cochran, Cochran v. Mayor and City Council of Baltimore, and Oregon v. Cochran.
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