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Posted Fri, November 6th, 2020 1:48 pm by Andrew Hamm

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 otherpetitions of the weekare below:

City of San Antonio, Texas v. Hotels.com, L.P.20-334Issue: 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 underFed. R. App. P. 39(e).

American Medical Association v. Azar20-429Issues: (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 violatesSection 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 Baltimore20-454Issues: (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 agencys statutory authority; and (2) whether the rule is the product of reasoned decisionmaking.

HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association20-472Issue: Whether, in order to qualify for a hardship exemption underSection 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. Belton20-481Issue: Whether provisions of the Bankruptcy Code providing for a statutorily enforceable discharge of a debtors debts impliedly repeal theFederal Arbitration Act.

Bess v. United States20-489Issues: (1) Whether10 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. Wainwright20-490Issue: 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.20-495Issues: (1) Whether, and under what circumstances, claims arising under federal statute are subject to the Railway Labor Acts mandatory arbitration requirement; and (2) whether the undue hardship inquiry in a Title VII case is an affirmative defense to liability.

Oregon v. Azar20-539Issues: (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.

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

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), https://www.scotusblog.com/2020/11/petitions-of-the-week-three-cases-testing-the-legality-of-a-federal-ban-on-abortion-referrals/

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