4th Circuit Upholds Block of Anti-Abortion Rule

In a 9 to 6 en banc published ruling on September 3, 2020, the 4th Circuit Court of Appeals upheld a lower court injunction preventing implementation of a agency rule designed to prevent abortion counseling or referral by medical personnel on the grounds that it improperly violated medical ethics, interfering with the physician patient relationship, and improperly imposed costs on medical institutions and facilities without a permissible basis, violating Title 10 by requiring any entity receiving such funds to “physically separate their abortion-related services from the Title X services.”

The decision (Baltimore v. Azar, US Dept of Health & Human Services, No. 19-164) had a strong dissent arguing that the agency’s ethical and moral policy judgments and analysis justified such restrictions and should not be questioned by a reviewing court, and that since federal money could not be used for abortion, denying information and referrals to clients was not gagging since the agency claimed it was simply restricting counseling on family planning, not health counseling, and therefore would be consistent with the goals of Congress in restricting such funds, and furthermore that the costs of physical separation in facilities was not adequately proven.

Ironically, the dissenters are really arguing that providing knowledge of abortion is tantamount to promotion or encouraging it, in keeping with current administration policy that seeks to deny knowledge as a method of obtaining some policy goal. The majority strongly denied that there was any weakening of the rule against federal funding, and based their decision on medical ethics and costs.

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