Amicus Curiae Brief — Xavier Becerra, Secretary of Health and Human Services, et al., Petitioners v. Mayor and City Council of Baltimore

NO. 20-454

IN THE

Supreme Court of the United States

ALEX M. AZAR II, SECRETARY OF HEALTH AND HUMAN

SERVICES, ET AL.,

Petitioners,

v.

MAYOR AND CITY COUNCIL OF BALTIMORE,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

BRIEF OF AMICI CURIAE THE AMERICAN

ASSOCIATION OF PRO-LIFE OBSTETRICIANS

& GYNECOLOGISTS AND CHRISTIAN

MEDICAL AND DENTAL ASSOCIATIONS

IN SUPPORT OF PETITIONERS

JOHN J. BURSCH

Counsel of Record

KEVIN H. THERIOT

RORY T. GRAY

ALLIANCE DEFENDING FREEDOM

440 First Street NW, Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@adflegal.org

Counsel for Amici Curiae

i

QUESTION PRESENTED

Title X of the Public Health Service Act, which

authorizes federal funding for family planning

services, provides that “[n]one of the funds

appropriated under this subchapter shall be used in

programs where abortion is a method of family

planning.” 42 U.S.C. 300a-6. In Rust v. Sullivan, 500

U.S. 173 (1991), this Court upheld a regulation that,

among other things, prohibited recipients of Title X

funds from making elective-abortion referrals in Title

X clinics and also required them to maintain physical

separation between those clinics and any abortionrelated activities. This Court explained that those

referral and separation provisions were authorized by

statute, the product of reasoned decisionmaking, and

consistent with the Constitution. Relying on that

decision, the Department of Health and Human

Services issued a final rule in 2019 that reinstated

materially indistinguishable referral and separation

provisions. The questions presented are as follows:

1. Whether the rule falls within the agency’s

statutory authority.

2. Whether the rule is the product of reasoned

decisionmaking.

ii

TABLE OF CONTENTS

Page

Question Presented ............................................... i

Table of Authorities............................................. iii

Amici Curiae’s Statement of Interest .................. 1

Introduction and Summary of Argument ............ 3

Background ........................................................... 4

Argument .............................................................. 6

I.

The en banc Fourth Circuit’s opinion is

decision is procedurally remarkable and

factually wrong ........................................ 6

II. None of the en banc Fourth Circuit’s

reasons for enjoining the final rule

withstand scrutiny, and they all conflict

with the en banc Ninth Circuit’s proper

APA analysis............................................ 9

III. The Fourth Circuit wrongly assumed

that prominent medical associations

promote objective truths, rather than

abortion advocacy. ................................. 18

CONCLUSION ................................................... 20

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Barr v. American Association of Political

Consultants, Inc.,

140 S. Ct. 2335 (2020) ............................................7

California v. Azar,

950 F.3d 1067 (9th Cir. 2020) ...................... passim

Department of Commerce v. New York,

139 S. Ct. 2551 (2019) ...................................... 6, 14

Department of Homeland Security v. Regents

of the University of California,

140 S. Ct. 1891 (2020) ............................................9

Mayor & City Council of Baltimore v. Azar,

799 F. App’x 193 (4th Cir. 2020) ...........................6

Mayor & City Council of Baltimore v. Azar,

973 F.3d 258 (4th Cir. 2020) ........................ passim

Rust v. Sullivan,

500 U.S. 173 (1991) ...................................... passim

Statutes

42 U.S.C. 18114(1)–(4) ..............................................16

42 U.S.C. 300a-6 ................................................ passim

Pub. L. No. 115-245, 132 Stat. 2981 .........................14

Other Authorities

AMA, The Litigation Center,

https://bit.ly/32fu1mn ..........................................18

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Contraception, Reasons Why Women Have

Induced Abortions (July 2017),

https://bit.ly/3655At6 ...........................................15

Guttmacher Inst., Reasons U.S. Women Have

Abortions (Sept. 2005),

https://bit.ly/32ckBIs ............................................15

Regulations

84 Fed. Reg. 7714 (Mar. 4, 2019) ...................... passim

1

AMICI CURIAE’S STATEMENT OF INTEREST1

The

American

Association

of

Pro-Life

Obstetricians & Gynecologists (AAPLOG) is a

nonprofit professional medical organization with over

4,000

obstetrician-gynecologist

members

and

associates. Before the American College/Congress of

Obstetricians and Gynecologists discontinued the

title, it recognized the American Association of ProLife Obstetricians and Gynecologists as a “special

interest group” for 40 years. AAPLOG strives to

ensure that pregnant women receive quality care, and

that they are informed of abortions’ potential longterm consequences on women’s health. AAPLOG

offers healthcare providers and the public a better

understanding of abortion-related health risks, such

as depression, substance abuse, suicide, subsequent

preterm birth, and placenta previa.

The Christian Medical and Dental Associations

(CMDA) educates, encourages, and equips Christian

healthcare professionals to glorify God by following

Christ, serving with excellence and compassion,

caring for all people, and advancing Biblical principles

of health care within the Church and throughout the

world. CMDA has 20,000 members and 329 chapters

at medical, dental, optometry, physician assistant,

and undergraduate schools across the country.

1 No counsel for a party authored this brief in whole or in part,

and no person other than amici and their counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. Counsel were timely notified of this brief

as required by Supreme Court Rule 37.2, and all parties

consented to its filing.

2

AAPLOG and CMDA have a strong interest in

ensuring that Congress’s refusal to fund abortion

counseling and advocacy through the public fisc is

respected, and in defending the agency’s effort to

implement Congress’s conscience protections, which

make pro-life healthcare organizations and providers’

participation in the Title X program possible.

3

INTRODUCTION AND SUMMARY OF

ARGUMENT

Hewing closely to the statutory language, the U.S.

Department of Health and Human Services (HHS)

issued a final rule executing Congress’s instruction

that “programs where abortion is a method of family

planning” not receive Title X funds. 42 U.S.C. 300a-6.

The final rule essentially revives Title X regulations

this Court approved in Rust v. Sullivan, 500 U.S. 173

(1991). Yet the Fourth Circuit en banc majority took

extraordinary measures to overturn it. In so doing, the

Fourth Circuit dismissed Rust and an earlier Ninth

Circuit en banc ruling that is well-reasoned and

textually sound, creating a circuit split in the process.

This Court’s review is urgently needed to prevent

the Administrative Procedure Act (APA) from

becoming a mechanism for lower courts to substitute

their own policy views for that of the elected branches

of government. In this case, the Fourth Circuit’s en

banc ruling is factually wrong because it ignored HHS’

thorough analysis of the matters at hand.

None of the APA violations the Fourth Circuit

identified bear scrutiny. Congressionally-enacted

statutes control HHS’s oversight of the Title X

program, not leading medical associations’ ethical

notions. Lower courts cannot overlook complementary

conscience statutes that Congress wrote in favor of

private ethics opinions with no legal force. And the

APA does not require HHS to promote commenters’

cost-benefit analyses above its own. Moreover, no

amount of twisting can transform Congress’s

allowance of nondirective pregnancy counseling into

an abortion-referral mandate. Nor does anything in

the ACA alter how HHS implements Title X.

4

The Fourth Circuit wrongly assumed that leading

medical associations promote objective truths, rather

than abortion advocacy. But the bias of these groups

is plain to see. And the APA gives no special sanctity

to major medical associations’ ethical views in any

event. HHS may reject their judgments, just as this

Court routinely does in cases involving pro-life clinics

and speech. Certiorari is warranted.

BACKGROUND

Amici Curiae rely on the government’s statement

of the case. But certain aspects of this Court’s decision

in Rust bear special mention, as the final rule is

essentially a return to the 1988 Title X regulations

this Court upheld in a landmark ruling nearly 30

years ago. 84 Fed. Reg. 7714 (Mar. 4, 2019). Five of

Rust’s conclusions are especially relevant here.

First, Title X’s decree “that [n]one of the funds

appropriated under this subchapter shall be used in

programs where abortion is a method of family

planning,’” Rust, 500 U.S. at 178 (quoting 42 U.S.C.

300a-6), expresses Congress’s “inten[t] that Title X

funds be kept separate and distinct from abortionrelated activities,” id. at 190. Congress, in short,

“refus[ed] to fund abortion counseling and advocacy.”

Id. at 202.

Second, the federal government may—through

the Title X program—lawfully “subsidize family

planning services which will lead to conception and

childbirth, and decline[ ] to promote or encourage

abortion.” Id. at 193 (cleaned up). “The Government

has no affirmative duty to commit any resources to

facilitating abortions . . . .” Id. at 201 (cleaned up).

5

Third, regulations like the final rule that

“implement the statutory prohibition by prohibiting

counseling, referral, and the provision of information

regarding abortion as a method of family

planning. . . . ensure that the limits of the federal

[Title X] program are observed.” Id. at 193. “[W]hen

the Government appropriates public funds to

establish a program it is entitled to define the limits

of that program,” including by barring “a project

grantee or its employees from engaging in activities

[like abortion counseling or advocacy that are] outside

of the project’s scope” using taxpayer funds. Id. at 194.

Fourth, Title X regulations like the final rule “do

not significantly impinge upon the doctor-patient

relationship” because “the Title X program [is not]

sufficiently all encompassing so as to justify an

expectation on the part of the patient of

comprehensive medical advice.” Id. at 200. Because

the program “does not provide post conception medical

care,” any “silence with regard to abortion cannot

reasonably be thought to mislead a client”—“abortion

is simply beyond the scope of the program.” Ibid.

Finally, because Congress “refused to fund

[abortion-related] activities out of the public fisc,”

HHS may “require[ ] a certain degree of separation

from the Title X project in order to ensure the

integrity of the federal funded program.” Id. at 198.

HHS may reasonably conclude that “separate

facilities are necessary, especially in light of [42

U.S.C. 300a-6’s] express prohibition” on funding a

project where abortion is a method of family planning.

Id. at 190. This divide ensures that abortion-related

activities are “separate and independent from the

project that receives Title X funds, id. at 196.

6

I.

ARGUMENT

The en banc Fourth Circuit’s decision is

procedurally remarkable and factually

wrong.

Under the APA, courts are charged with ensuring

that agencies “remain[ ] within the bounds of

reasoned decisionmaking.” Dep’t of Commerce v. New

York, 139 S. Ct. 2551, 2569 (2019) (cleaned up). But

too often, lower courts go much further, effectively

substituting their own policy judgments for those of

the elected branches of government.

This case is a perfect example. The Fourth Circuit

wrongfully viewed Title X and HHS’ resulting final

rule as effecting a government policy of “shov[ing] its

way inside the examination room with a woman and

her physician.” Mayor & City Council of Balt. v. Azar,

973 F.3d 258, 281 (4th Cir. 2020) (en banc). With that

policy judgment in mind, the court pursued a course

filled with procedural irregularities and factual

mistakes.

First, after oral argument revealed the

government would likely prevail at the panel level,

the Fourth Circuit granted initial en banc review

before the panel could issue a decision. Id. at 302

(Richardson, J., dissenting). The en banc court

“circumvent[ed] [the] conventional three-judge panel

process,” Mayor & City Council of Balt. v. Azar, 799 F.

App’x 193, 196 (4th Cir. 2020) (Richardson, J.,

dissenting from the order denying motion to stay),

because a majority of active judges could not wait for

a reasoned decision to intervene. Such impatience,

standing alone, was extraordinary.

7

Second, the Fourth Circuit defied normal waiver

rules. Commenters did not raise an Affordable Care

Act (ACA) objection to the final rule during notice and

comment. Yet the en banc majority considered that

argument anyway and ruled for Baltimore. Mayor of

Balt., 973 F.3d at 290–91. What’s more, the en banc

court provided no convincing justification for

requiring HHS to refute objections that commentors

never made. Id. at 313 n.20 (Richardson, J., dissenting) (recognizing Baltimore’s ACA claim is waived).

Third, the en banc court did not just enjoin

portions of the final rule that relate to abortion

counseling, abortion referrals, and maintaining the

Title X program’s integrity. Overriding the final rule’s

express severability statement, the majority affirmed

the district court’s permanent “injunction of the

entire” rule. Id. at 292. In so doing, it defied this

Court’s heavy “emphasi[s] [on] adherence to the text

of severability clauses” only a few months ago. Barr v.

Am. Ass’n of Political Consultants, Inc., 140 S. Ct.

2335, 2356 (2020) (plurality opinion); accord id. at

2363 (Breyer, J., concurring in the judgment with

respect to severability and dissenting in part).

Fourth, Title X’s text expressly bars funding of

any project “where abortion is a method of family

planning,” 42 U.S.C. 300a-6. That text is strong

support for the final rule. Yet the Fourth Circuit’s

reasoning on the merits of Baltimore’s APA claims

barely mentions § 300a-6’s plain text. That key

statutory language—the final rule’s bedrock—

features only in the majority’s quotation of (1) this

Court’s Rust opinion, Mayor of Balt., 973 F.3d at 283,

287, (2) HHS’s final rule, id. at 284, 293; and

(3) HHS’s pleadings in this litigation, id. at 285.

8

Fifth, the Fourth Circuit misstated the final rule’s

content and ignored HHS’s actual reasoning. The

court alleged that the agency “merely stated—with no

support—that it ‘disagrees with the commenters

contending the [Final Rule] infringes on the legal,

ethical, or professional obligations of medical

professionals.’” Id. at 276 (quoting 84 Fed. Reg. at

7724); accord id. at 277 (quoting 84 Fed. Reg. at 7724).

But that statement is not accurate. Id. at 319

(Richardson, J., dissenting). The final rule offers a

persuasive response to comments regarding medical

ethics.

HHS recognized that “Congress . . . permits

pregnancy counseling within the Title X program, so

long as such counseling is nondirective.” 84 Fed. Reg.

at 7724. And the final rule authorizes “a physician or

[advanced practice provider (APP) to] provide

nondirective pregnancy counseling to pregnant Title

X clients on the patient’s pregnancy options, including

abortion.” Ibid. In short, the final rules allow medical

professionals “to share full and accurate information

with the patient.” Ibid. And it requires a “physician or

APP . . . to refer for medical emergencies and for

conditions for which non-Title X care is medically

necessary for the health and safety of the mother or

child.” Ibid.

Because Rust upheld a 1988 rule that completely

banned “referral for, and counseling about, abortion

in the Title X program,” id. at 7748, HHS concluded

that the final rule’s more permissive take—based on

an appropriations rider Congress first adopted in

1996, 84 Fed. Reg. at 7730—could not violate medical

ethics. As HHS explained, this Court in Rust did not

“uph[o]ld a rule that required the violation of medical

9

ethics,” nor did Congress violate medical ethics by

passing laws that protect “the ability of health care

personnel to not assist or refer for abortions in the

context of HHS funded or administered programs.”

Ibid. To the extent state law reflects a different view,

federal law controls how Title X grant money is spent

and the Supremacy Clause preempts “any potential

State law to the contrary.” Ibid.

When lower courts overlook HHS’s reasons for

drafting the final rule a certain way, APA review loses

its legitimate purpose. It becomes merely an

opportunity for a lower “court . . . to substitute its

[policy] judgment for that of the agency,” a distortion

of the judicial role this Court forbids. Dep’t of

Homeland Sec. v. Regents of the Univ. of Cal., 140 S.

Ct. 1891, 1905 (2020) (citation omitted). This Court

should grant review and reject the en banc Fourth

Circuit’s results-oriented approach and restore the

APA’s proper place.

II. None of the en banc Fourth Circuit’s

reasons for enjoining the final rule

withstand scrutiny, and they all

conflict with the en banc Ninth

Circuit’s proper APA analysis.

The Fourth Circuit held that the final rule is

arbitrary and capricious, and not in accord with law.

But none of its reasons for enjoining the final rule

withstand scrutiny, and they all conflict with the en

banc Ninth Circuit’s proper APA analysis.

10

1. Medical ethics. The Fourth Circuit said that

HHS’s “decision that the Final Rule is ‘not inconsistent’ with medical ethics is arbitrary and capricious.”

Mayor of Balt., 973 F.3d at 281. And it relied on

comments arguing that medical ethics require doctors

to “provide . . . referrals to abortion providers . . . if

directly required by the patient,” otherwise the

government would “intru[de]” into the patientphysician relationship.” Id. at 277 (cleaned up).

Yet it is easy to see why HHS rejected these

objections. Private associations’ notion of medical

ethics, which carry no legal force, does not control how

HHS implements Title X. The words Congress wrote

and this Court’s analysis in Rust do. When faced with

a conflict between Title X’s explicit ban on tax money

flowing to “programs where abortion is a method of

family planning,” 42 U.S.C. 300a-6, and medical

associations’ insistence that the government treat

abortion as a valid family-planning method, the

decision is easy: Congress wins.

As HHS explained, many “commenters appear[ed]

to be either unaware of, or confused about (or to have

intentionally ignored), the fact that Title X explicitly

excludes funding for projects where abortion is a

method of family planning.” 84 Fed. Reg. at 7729. The

agency “has no statutory authority to consider family

planning under Title X to include abortion.” Ibid.

When commenters invite agencies to violate the law,

the answer should be no. And that is doubly true here.

The Rust Court already recognized that, due to the

Title X programs’ limited scope, patients cannot

“expect[ ] . . . comprehensive medical advice.” 500

U.S. at 200. So neither Title X nor the final rule has

an ethics problem. Medical professionals who

11

seriously disagree may decline Title X funds. Id. at

199 n.5.

The Fourth Circuit refused to heed Title X’s text

or credit HHS’s refusal to countermand Congress. In

stark contrast, the Ninth Circuit took the opposite

approach, accepting that “HHS examined the relevant

considerations arising from commenters citing

medical ethics and rationally articulated an

explanation for its conclusion.” California v. Azar, 950

F.3d 1067, 1103 (9th Cir. 2020) (en banc), petition for

cert. filed, Nos. 20-429 and 20-539 (U.S. 2020). Only

this Court may resolve the conflict.

2. Conscience statutes. The Fourth Circuit labeled

it arbitrary and capricious for HHS to take conscience

statutes like the Church Amendments, Coats-Snowe

Amendment, and Weldon Amendment into account

when drafting the final rule because they are “of no

moment.” Mayor of Balt., 973 F.3d at 279. But no

corollary statute Congress enacts is irrelevant. HHS

rightly took all relevant statutes seriously. Its prior

regulations’ mandate that “Title X projects . . . provide

abortion referral and nondirective counseling on

abortion, if requested. . . . is inconsistent with federal

conscience laws” and Title X. 84 Fed. Reg. at 7716. As

the final rule correctly explained, “in most instances

when a referral is provided for abortion, that referral

necessarily treats abortion as a method of family

planning.” Id. at 7717. The abortion referral and

resulting abortion procedure “are so linked that such

a referral makes the Title X project or clinic a program

one where abortion is a method of family planning,

contrary to [42 U.S.C. 300a-6].” Ibid.

12

The Fourth Circuit opinion never addressed

HHS’s well-reasoned analysis of Title X’s text because

it ignored § 300a-6’s abortion exclusion and dismissed

statutes enhancing that safeguard of conscience

rights. Instead, the opinion focused (once again) on

private medical association’s comments, citing an

ethics opinion by one of them that (1) would sharply

limit conscientious objections to abortion in violation

of federal conscience statutes, and (2) wrongly

demeans objections to taking innocent human life as

“deviat[ion] from standard [medical] practices.”

Mayor of Balt., 973 F.3d at 279–80 (cleaned up).

Whether private medical associations agree with

respecting conscience rights is immaterial. Id. at 321

(Richardson, J., dissenting). Congress writes the laws,

and the executive implements them. Nothing in the

APA requires HHS to “adopt[ ] [private medical

associations’]

preferred

regulatory

approach.”

California, 950 F.3d at 1102. The Ninth Circuit

recognized as much; the Fourth Circuit made those

private preferences controlling.

3. Physical and financial separation. The Fourth

Circuit opinion said that HHS did not adequately

consider the financial costs of maintaining physical

and financial separation between grantees’ Title X

programs and abortion activities that fall outside Title

X’s scope, and also failed to explain why it rejected

hostile commenters’ cost-benefit analyses. Mayor of

Balt., 973 F.3d at 282. Neither criticism is valid.

Notably, the Fourth Circuit relied on comments

that characterize the final rule’s financial separation

requirements as “needless.” Id. at 281 (citation

omitted). But Title X grantees are not likely to admit

that misdirecting taxpayer dollars is a serious

13

problem. Conceding that fact is directly opposed to

their financial interests. So this comment is hardly

probative.

HHS responded that “physical and financial

separation [is necessary] to protect the statutory

integrity of the Title X program, to eliminate the risk

of co-mingling or misuse of Title X funds, and to

prevent the dilution of Title X resources.” 84 Fed. Reg.

at 7715. Rust approved a nearly-identical rationale,

confirming that HHS may “require[] a certain degree

of separation [of abortion] from the Title X project in

order to ensure the integrity of the federally funded

program,” 500 U.S. at 198, “especially in light of [42

U.S.C. 300a-6’s] express prohibition” on funding programs where abortion is a method of family planning,

id. at 190. Because this text has not changed, there is

no justification for casting Rust’s holding aside.

What’s more, the Fourth Circuit credited

comments implying that abortion providers will be

forced to spend “hundreds of thousands, or even

millions, of dollars to locate and open [a new] health

care facility” or else “shutter[ ] . . . a number of

invaluable clinics.” Mayor of Balt., 973 F.3d at 281–82

(cleaned up). Yet HHS made clear these commenters

“did not provide sufficient data to estimate these [cost]

effects across the Title X program.” 84 Fed. Reg. at

7781. And HHS further clarified that these

commenters wrongly “provided extremely high cost

estimates based on assumptions that they would have

to build new facilities in order to comply” with the

physical-separation requirement. Ibid. But those

projections are untenable because “entities will likely

choose the lowest cost method” of compliance, which

14

is unlikely to include the “construction of new

facilities.” Ibid.

The en banc opinion disregarded the final rule’s

content and sought to enforce naysayers’ views. The

Ninth Circuit, in contrast, rightly held that

commenter’s “‘pessimistic’ [cost] predictions and

assumptions are ‘simply evidence for the [agency] to

consider,’ Dep’t of Commerce, 139 S. Ct. at 2571, and

are not entitled to controlling weight. HHS need not

produce ‘some special justification for drawing [its]

own inferences and adopting [its] own assumptions.’

Id.” California, 950 F.3d at 1100. Yet that is what the

Fourth Circuit required.

4. Nondirective pregnancy counseling. Every year

since 1996, Congress has enacted an appropriations

rider that provides (among other things) funding

given to Title X projects “shall not be expended for

abortions, [and] that all pregnancy counseling shall be

nondirective.” Pub. L. No. 115-245, 132 Stat. 2981,

3070–71. The final rule thus correctly acknowledged

that “Congress . . . permits pregnancy counseling

within the Title X program, so long as such counseling

is nondirective.” 84 Fed. Reg. at 7724. In spite of this

textual symmetry, the en banc opinion concluded that

HHS’s final rule violates the appropriations rider.

The en banc majority did so by conflating permissible pregnancy counseling with prohibited abortion

referrals. Mayor of Balt., 973 F.3d at 283–85.

Congress’ appropriations rider never speaks to

abortion referrals. So the Fourth Circuit’s analysis

misses the mark. But Congress’ rider does prohibit

expending Title X funds for abortions, much like the

language of 42 U.S.C. 300a-6. HHS rightly concluded

that Title X bars abortion referrals because “in most

15

instances when a referral is provided for abortion,

that referral necessarily treats abortion as a method

of family planning,” 84 Fed. Reg. at 7717, as abortions

for other reasons are comparatively rare.2

Alternatively, the Fourth Circuit reasoned that “a

patient may come in seeking an abortion, but the only

counseling done is on prenatal care, and on the

[referral] list provided, none of the physicians perform

abortions.” Mayor of Balt., 973 F.3d at 286. But

prenatal care is “medically necessary for pregnant

women. . . . to optimize the health of the mother and

unborn child, and . . . help ameliorate the current

health inequality as it relates to low income women.”

84 Fed. Reg. at 7762. Using abortion as a familyplanning method is not. So the majority compared

apples to oranges. Accord California, 950 F.3d at

1089–90. Moreover, Rust established that the federal

government may favor “conception and childbirth,

and decline[] to promote or encourage abortion.” 500

U.S. at 193 (cleaned up). That is what Congress

directed through the rider and § 300a-6, and HHS’s

final rule merely reflects that policy judgment.

2 Contraception, Reasons Why Women Have Induced Abortions

(July 2017) at 238, https://bit.ly/3655At6 (citing postponing

childbearing, wanting no (more) children, and socioeconomic

concerns as the common reasons for obtaining an abortion in the

United States); Guttmacher Inst., Reasons U.S. Women Have

Abortions (Sept. 2005), https://bit.ly/32ckBIs (characterizing the

most common reasons for having an abortion as interference

with education, work or caring for dependents; economic

concerns; and single motherhood or relationship problems).

16

The Ninth Circuit rightly held that nothing in the

appropriation rider indicates that Congress understood “nondirective pregnancy counseling” to include

“referrals.” California, 950 F.3d at 1088. Nor does

“nondirective” mean “present[ing] . . . all options on

an equal basis.” Ibid. It simply requires Title X

projects to “present options in a neutral manner and

refrain from encouraging the client to select a particular option.” Ibid. Referral lists, which merely name

licensed healthcare providers, cannot “encourage[ ] or

promote[ ] a specific option,” so the rider has no

application to them. Id. at 1091.

Yet the Fourth Circuit majority discarded this

careful textual analysis without explanation, creating

a circuit split. Mayor of Balt., 973 F.3d at 283. Now

HHS’s final rule does not apply to Title X projects in

Maryland, though it applies nearly everywhere else.

This Court’s review is needed to correct the Fourth

Circuit’s errors and ensure that Congress’s repeated

refusal to facilitate abortion with taxpayer dollars is

enforced nationwide.

5. ACA restrictions. The en banc Fourth Circuit

said that the final rule violates a section of the ACA

that (among other things) bars HHS from

promulgating regulations—“[n]otwithstanding any

other provision of this Act”—that (a) create

unreasonable barriers to obtaining appropriate

medical care, (b) impede timely access to health care

services, (c) interfere with communications regarding

a full range of treatment options, or (d) restrict health

care providers’ ability to provide full disclosure of all

relevant information to patients. 42 U.S.C. 18114(1)–

(4). But commenters did not allege the final rule

violated this ACA provision during notice and

17

comment, so the argument is waived, as the Ninth

Circuit indicated. California, 950 F.3d at 1092 n.23;

accord Mayor of Balt., 973 F.3d at 313 n.20

(Richardson, J., dissenting).

In any event, the Fourth Circuit’s opinion

misread the ACA. Section 18114’s restrictions apply

not to HHS regulations generally but “[n]otwithstanding any other provision of this Act,” meaning

“any regulation” HHS “promulgate[s]” under the ACA.

So the ACA has no bearing on the final rule, which

HHS promulgated under Title X. As the Ninth Circuit

explained, “Congress intended to ensure that HHS, in

implementing the broad authority provided by the

ACA, does not improperly impose regulatory burdens

on doctors and patients,” it “did not seek to alter the

relationship between federally funded grant programs

and abortion in a fundamental way.” California, 950

F.3d at 1094. “In short, the ACA did not address the

implementation of Congress’s choice not to subsidize

certain activities” in Title X. Id. at 1095.

The Fourth Circuit opinion’s contrary conclusion

stretches § 18114’s text beyond recognition and

invites lower courts to overturn all manner of nonACA regulations based on their own policy judgments.

By virtue of the ACA’s plain text, its restrictions do

not extend to HHS regulations promulgated in any

non-ACA context. This Court should step in and

enforce the ACA’s plain language.

18

III. The Fourth Circuit wrongly assumed

that prominent medical associations

promote objective truths, rather than

abortion advocacy.

Underlying the Fourth Circuit’s ruling is an

unwarranted assumption that prominent medical

associations promote objective truths, rather than

abortion advocacy. The majority opinion reflects

disbelief that HHS could reasonably “disagree[ ] with

every major medication association” that submitted

comments. Mayor of Balt., 973 F.3d at 276. But HHS

is well-aware that leading medical associations are

not neutral arbiters; these associations are highly

partisan and among our nation’s leading proponents

of abortion on demand. E.g., 84 Fed. Reg. at 7729

(reproaching some commentors for “intentionally

ignor[ing]” the fact that “Title X explicitly excludes

funding for projects where abortion is a method of

family planning”).

One example illustrates the wider problem. The

American Medical Association (AMA) promotes itself

as the largest professional association of physicians,

residents, and medical students in the United States,

which promotes the science and art of medicine, and

promotes the betterment of public health. But that

description is incomplete. The AMA has a litigation

center that “brings lawsuits, files amicus briefs and

otherwise” represents the AMA’s interests in court.

AMA, The Litigation Center, https://bit.ly/32fu1mn.

Among the AMA litigation center’s key interests is

promoting abortion. And the AMA advances that

interest in earnest.

19

For example, the AMA has advocated

“unencumbered . . . access” to abortion and characterizes the ending of an early human life as a

“reproductive health service[ ] [of] unparalleled

importance” that women must be able to access

“without delay.” Br. of Am. Coll. of Obstetricians &

Gynecologists, et al. at 5, McCullen v. Coakley, No. 121168 (Nov. 22, 2013), https://bit.ly/388Uw0E. It

frequently cites “medical . . . ethics” as requiring

courts to adopt its policy views.3 Br. of Am. Coll. of

Obstetricians & Gynecologists, et al. at 5, June Med.

Servs. L.L.C. v. Gee, Nos. 18-1323 & 18-1460 (Dec. 2,

2019), https://bit.ly/2U07fKB. In fact, the AMA

initiated a lawsuit to strike down the final rule at

issue in this case and recently filed a cert. petition

demanding that result based (in part) on “medical

ethics.” Pet. for a Writ of Certiorari at 23, Am. Med.

Ass’n v. Azar, No. 20-429 (Oct. 1, 2020),

https://bit.ly/3l0OMJT.

But this Court has never acquiesced to the AMA’s

policy views simply because it is a significant medical

association. Quite the opposite, the AMA’s proabortion policy positions have not fared well in this

Court, which rejected the AMA’s call to force a pro-life

pregnancy clinic in California to advertise for the

abortion industry based (in part) on its dubious view

of medical ethics. Br. of Am. Med. Ass’n at 9–10, 14–

15, Nat’l Inst. of Family & Life Advocates v. Becerra,

3 Accord Br. of Medical Associations in Supp. of Pls.’ Opp’n to

Defs.’ Appl. for Stay Pending Appeal at 15, U.S. Food & Drug

Admin. v. Am. Coll. of Obstetricians & Gynecologists, No. 20A34

(Sept. 8, 2020), https://bit.ly/2HZLUym (contending the FDA’s

in-person dispensing requirement for Mifeprex, which is used to

effect medication abortions, violates “[m]edical ethics”)

20

No. 16-1140 (Feb. 27, 2018), https://bit.ly/36aSzOO.

The Court also rightly spurned the AMA’s assertion

that pro-life sidewalk counselors in Massachusetts

have no First Amendment right to speak in public

byways outside of an abortion clinic. Br. of Am. Med.

Ass’n at 5–7, McCullen v. Coakley, No. 12-1168 (Nov.

22, 2013), https://bit.ly/388Uw0E.

Just like this Court, HHS was free to reject the

AMA’s pro-abortion advocacy. Nothing in the APA

gives “major medical association[’s]” views sanctity,

contrary to the Fourth Circuit’s opinion. Mayor of

Balt., 973 F.3d at 266, 276, 278. As the Ninth Circuit

recognized, the AMA’s judgments are not “entitled to

controlling weight.” California, 950 F.3d at 1100.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

JOHN J. BURSCH

Counsel of Record

KEVIN H. THERIOT

RORY T. GRAY

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@adflegal.org

NOVEMBER 2020

Counsel for Amici Curiae