“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Fourth Circuit judges Julius Richardson. Marvin Quattlebaum, and Allison Rushing tried in dissent to uphold a Trump Administration gag rule that forbids doctors and others at federally funded health clinics from discussing abortion with their patients or referring them for an abortion if they wish. The full court majority rejected their arguments and affirmed a permanent injunction against the gag rule in Maryland in its September 2020 case Mayor and City of Baltimore v. Azar.
In 2019, the Trump Administration Department of Health and Human Services (HHS) released a domestic abortion gag rule as described adove. Although a district court had issued a preliminary injunction against the rule in Baltimore in response to a lawsuit filed by city officials, a 2-1 ruling by Trump judges Richardson and Rushing stayed the injunction and allowed the rule to go into effect. The litigation continued, and the district court then issued a permanent injunction against the rule in Maryland, finding that the rule violates the Affordable Care Act (ACA) and Title X, the federal law that provides funding for family planning clinics. The full Fourth Circuit agreed to hear the government’s appeal.
Judge Stephanie Thacker wrote an opinion for eight judges that affirmed the injunction. She explained that the Trump rule was “arbitrary and capricious” because it “failed to address the ethical concerns of literally every major medical organization in the country” concerning doctor-patient discussions and related issues. She also held that the rule violates specific provisions of Title X that require “nondirective counseling” of patients and prohibit “interference with physician-patient communications.”
Trump judge Richardson dissented, joined by Trump judges Quattlebaum and Rushing plus several others. Richardson claimed that the court should have upheld the rule, as a recent Ninth Circuit decision did with the help of several Trump judges, and that it was valid under the Supreme Court’s Rust v. Sullivan decision, which upheld a comparable rule promulgated under Presidents Reagan and Bush. He also maintained that the rule was not arbitrary and capricious but was an example of “reasoned” decision-making.
Judge Thacker explained what was wrong with the dissent’s arguments. Unlike this case, she pointed out, the Ninth Circuit did not have a full administrative record before it for consideration, and its discussion regarding medical ethics “nowhere mentions” HHS’ specific failure to justify its conclusion that the rule was consistent with medical ethics “in the face of overwhelming contrary evidence.” Far from being “reasoned,” the majority went on, HHS’ decision failed to respond or even acknowledge “the medical community’s concerns” and many other objections, so that its “analysis” was effectively “nothing but a long-winded ‘because we said so.’” Rust did not apply, the majority continued, because it did not even consider “medical ethics requirements” and because it was decided before Congress enacted the “nondirective mandate” and the prohibition against interference with doctor-patient communications.
The future of the Trump Title X gag rule may depend in large measure on what happens in this year’s elections. If Trump is re-elected and the rule remains in force, it is considered likely that the Supreme Court will decide the issue in light of the two differing opinions. For now at least, the rule is invalid at least in Maryland. Had Judge Richardson and the other Trump judges been in the majority, the harmful rule would remain in effect across the country.
Note: PFAW legal intern Oliver Telusma prepared the initial draft of this post.