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

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Posted on November 6, 2020 at 1:48 pm by Andrew Hamm

This week we’re highlighting certification filings calling on the Supreme Court, among other things, to review conflicting lower court rulings regarding a Trump administrative rule that bans clinics receiving funding through the federal Title X program, Provide referrals for abortion.

Title X’s Family Planning Program offers grants to support health services, including cancer screening and pregnancy counseling. The law prohibits Title X funds “from being used in programs where abortion is a family planning method.” In 2019 the Department of Health and Human Services issued its rule on the grounds that “[i]The Title X project relates to … Abortion as a family planning method. It is a program where abortion is a family planning method. The previous rule had allowed Title X clinics to provide advice on abortion and referrals upon request. The challengers of the rule claim that they will prevent providers from meeting the requirement that “all pregnancy counseling” should be “non-directive”. The government claims that the rule is similar to a 1988 rule that the Supreme Court upheld in the Rust v Sullivan case. The petitions asking the judges to clarify the legality of the rule go to the Supreme Court after the U.S. Court of Appeals for the 9th Circuit ruled the rule (American Medical Association v Azar and Oregon v Azar) and the U.S. American court upheld of Appeals for the 4th Circuit knocked it down (Azar v. Mayor and Baltimore City Council).

These and other petitions of the week are listed below:

City of San Antonio, Texas BC Hotels.com, LP
20-334
problem: Whether, as the US appeals court for the 5th circuit alone has determined, the district courts “are absent[] Discretion to reject or reduce appeal costs found in the Fed District Court as “taxable”. R. App. P. 39 (e).

American Medical Association v Azar
20-429
Problems: (1) Whether the Department of Health and Human Services rule for the Title X Family Planning Program – which prohibits and enforces certain pregnancy-related speech between a Title X provider and their patient, prohibits abortion-related information, but requires information about non-information -abort options – is arbitrary and capricious; (2) whether the rule violates the Intermediate Act of Title X, which prescribes that “all pregnancy counseling” under Title X “is not indicative”; and (3) whether the rule violates Section 1554 of the Affordable Care Act, which provides that HHS “must not make regulations” that affect patient care in any of six ways, including “interfering”[ing] with communication ”between a patient and her provider.

Azar v Baltimore Mayor and City Council
20-454
Problems: (1) Whether the Department of Health and Human Services rule prohibiting Title X projects from providing referrals for abortion as a method of family planning falls within the agency’s legal remit; and (2) whether the rule is the product of reasoned decision-making.

HollyFrontier Cheyenne Refining, LLC v Renewable Fuels Association
20-472
problem: Whether a small refinery must receive an uninterrupted, continuous hardness exemption every year since 2011 in order to qualify for a hardness exemption under Section 7545 (o) (9) (B) (i) of the Renewable Fuel Standards.

GE Capital Retail Bank v Belton
20-481
problem: Whether provisions of the Insolvency Act, which provide for a legally enforceable settlement of a debtor’s debts, implicitly repeal the Federal Arbitration Act.

Bess against the United States
20-489
Problems: (1) Whether 10 USC § 825, which allows a military commander to give selected members the opportunity to sit on a general court martial, as used in Pedro Bess’ case – in which an all-white panel on charges of a black defendant Sexual behavior convicted of misconduct against a white woman – violates the fifth amendment; and (2) whether the lower court wrongly refused to remit Bess’ case for additional factual investigation.

Freeman v. Wainwright
20-490
problem: Whether the limitation period for filing a habeas application begins when the new judgment given after the re-conviction becomes final.

Stanley v ExpressJet Airlines Inc.
20-495
Problems: (1) Whether and under what circumstances claims under federal law are subject to the mandatory arbitration obligation of the Railway Labor Act; and (2) whether the “undue hardship” investigation in a Title VII case constitutes a positive defense of liability.

Oregon v. Azar
20-539
Problems: (1) Whether the Department of Health and Human Services final rule – which prohibits Title X providers from disclosing certain abortion-related information to their patients and requires a physical separation of Title X-funded care from health facilities providing abortion services, or certain information related to abortion – violates intermediate laws that “all pregnancy counseling” in the Title X program “need not be directive”; (2) Whether the final rule violates Section 1554 of the Affordable Care Act, which prohibits HHS from enacting “regulations” that create “unreasonable barriers” to adequate medical care, impede “timely access” to such care, Interferes with the patient Provider communication “on a wide range of treatment options” prevents providers from “providing all relevant information to patients making healthcare decisions” or violates the ethical standards of providers. and (3) whether the final rule is arbitrary and capricious, in violation of the Administrative Procedure Act, including inadequately responding to concerns that (a) the rule requires medical professionals to violate medical ethics, and (b) the counseling restrictions and The requirement of physical separation creates significant costs and affects access to care.

Posted in City of San Antonio, Texas v Hotels.com, LP, American Medical Association v Azar, Azar v Baltimore Mayor and Councilor, HollyFrontier Cheyenne Refining, LLC v Renewable Fuels Association, GE Capital Retail Bank v. Belton, Bess versus USA, Freeman versus Wainwright, Stanley versus ExpressJet Airlines Inc., Oregon versus Azar, Featured, Cases in the Pipeline

Recommended citation:
Andrew Hamm, Petitions of the Week: Three Cases Examining the Legality of a Federal Ban on Abortion Referrals
SCOTUSblog (November 6, 2020, 1:48 p.m.), https://www.scotusblog.com/2020/11/petitions-of-the-week-three-cases-testing-the-legality-of-a-federal – Ban-on Abortion Referrals /