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Petitions of the week: Three cases testing the legality of a federal ban on abortion referrals

This week we highlight cert petitions that ask the Supreme Court to review, among other things, conflicting lower-court decisions concerning a Trump administration rule that prohibits clinics that receive funds through the federal Title X program from providing referrals for abortion.

The Title X Family Planning Program provides grants to support health services, including cancer screening and pregnancy counseling. By statute, no Title X funds “shall be used in programs where abortion is a method of family planning.” In 2019, the Department of Health and Human Services issued its rule on the ground that “[i]f a Title X project refers for … abortion as a method of family planning, it is a program ‘where abortion is a method of family planning.’” The previous rule had allowed Title X clinics to offer counseling regarding abortion and referrals upon request. Challengers of the rule claim that it will prevent providers from complying with requirements that “all pregnancy counseling” should be “nondirective.” The administration maintains that the rule resembles a 1988 rule that the Supreme Court upheld in Rust v. Sullivan. The petitions that ask the justices to resolve the legality of the rule come to the Supreme Court after the U.S. Court of Appeals for the 9th Circuit upheld the rule (American Medical Association v. Azar and Oregon v. Azar) and the en banc U.S. Court of Appeals for the 4th Circuit struck it down (Azar v. Mayor and City Council of Baltimore).

These and other petitions of the week are below:

City of San Antonio, Texas v., L.P.
Issue: Whether, as the U.S. Court of Appeals for the 5th Circuit alone has held, district courts “lack[] discretion to deny or reduce” appellate costs deemed “taxable” in district court under Fed. R. App. P. 39(e).

American Medical Association v. Azar
Issues: (1) Whether the Department of Health and Human Services’ rule for the Title X family planning program — which prohibits and compels certain pregnancy-related speech between a Title X provider and her patient, proscribing abortion-related information but requiring information about non-abortion options — is arbitrary and capricious; (2) whether the rule violates the Title X appropriations act, which requires that “all pregnancy counseling” under Title X “shall be nondirective”; and (3) whether the rule violates Section 1554 of the Affordable Care Act, which requires that HHS “shall not promulgate any regulation” that harms patient care in any one of six ways, including by “interfer[ing] with communications” between a patient and her provider.

Azar v. Mayor and City Council of Baltimore
Issues: (1) Whether the Department of Health and Human Services’ rule, which prohibits Title X projects from providing referrals for abortion as a method of family planning, falls within the agency’s statutory authority; and (2) whether the rule is the product of reasoned decisionmaking.

HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association
Issue: Whether, in order to qualify for a hardship exemption under Section 7545(o)(9)(B)(i) of the Renewable Fuel Standards, a small refinery needs to receive uninterrupted, continuous hardship exemptions for every year since 2011.

GE Capital Retail Bank v. Belton
Issue: Whether provisions of the Bankruptcy Code providing for a statutorily enforceable discharge of a debtor’s debts impliedly repeal the Federal Arbitration Act.

Bess v. United States
Issues: (1) Whether 10 U.S.C. § 825, which allows a military commander to hand select members to sit on a general court-martial panel, as applied in Pedro Bess’ case — in which an all-white panel convicted a Black defendant of sexual misconduct against a white woman — violates the Fifth Amendment; and (2) whether the lower court erred in declining to remand Bess’ case for additional factfinding.

Freeman v. Wainwright
Issue: Whether the statute of limitations for filing a habeas petition begins when the new judgment entered following resentencing becomes final.

Stanley v. ExpressJet Airlines Inc.
Issues: (1) Whether, and under what circumstances, claims arising under federal statute are subject to the Railway Labor Act’s mandatory arbitration requirement; and (2) whether the “undue hardship” inquiry in a Title VII case is an affirmative defense to liability.

Oregon v. Azar
Issues: (1) Whether the Department of Health and Human Services’ final rule — which prohibits Title X providers from communicating certain abortion-related information to their patients and requires physical separation of Title X-funded care from healthcare facilities that provide abortion services or certain abortion-related information — violates appropriations statutes requiring that “all pregnancy counseling” in the Title X program “shall be nondirective”; (2) whether the final rule violates Section 1554 of the Affordable Care Act, which prohibits HHS from promulgating “any regulation” that creates “unreasonable barriers” to obtaining appropriate medical care, impedes “timely access” to such care, interferes with patient-provider communications “regarding a full range of treatment options,” restricts providers from disclosing “all relevant information to patients making health care decisions,” or violates providers’ ethical standards; and (3) whether the final rule is arbitrary and capricious, in violation of the Administrative Procedure Act, including by failing to respond adequately to concerns that (a) the rule requires medical professionals to violate medical ethics and (b) the counseling restrictions and physical-separation requirement impose significant costs and impair access to care.

Recommended Citation: Andrew Hamm, Petitions of the week: Three cases testing the legality of a federal ban on abortion referrals, SCOTUSblog (Nov. 6, 2020, 1:48 PM),