The case is one of several nationwide involving the administration’s family planning rules announced in June 2018 that make clinics ineligible to receive federal money if they provide referrals for abortion services or otherwise encourage, promote or advocate abortion as a method of family planning.
Baltimore officials told the U.S. Court of Appeals for the 4th Circuit in filings that restricting abortion referrals “erects unreasonable barriers to medical access and care” and would force the city to withdraw from the program rather than withhold information from patients.
Judge Stephanie Thacker appeared by her questioning to side with the city and dominated much of the discussion in the Richmond-based appeals court, asking the government’s lawyer at one point, “Isn’t abortion an option related to pregnancy? It is legal.”
Thacker also was one of three judges on the same appeals court panel that in July sided with the Trump administration over the rule. Then, Thacker dissented from the order by the two other judges — Allison Jones Rushing and Julius N. Richardson — that blocked a decision from a Baltimore judge saying the funding rule could not take effect immediately in Maryland. That earlier brief appeals court order set up the fuller Wednesday discussion.
California, Oregon and Washington also won injunctions from lower courts to block the rule. But in June, the U.S. Court of Appeals for the 9th Circuit, which reviews cases from those states, also allowed the regulations to take effect.
Planned Parenthood, the largest recipient of money through the program known as Title X, announced in August that its affiliates would refuse federal funds while the lawsuits are pending, rather than withhold medical information from patients. Maryland also has withdrawn from the program, a spokesman for Gov. Larry Hogan (R) said Wednesday.
The federal government has never allowed local programs to use Title X money to perform or subsidize abortions. The rule change, the government says, was intended to ensure the $286 million program is not used to encourage or promote abortion.
In defending the rule, the Justice Department pointed to a 1991 Supreme Court decision that upheld similar Reagan-era regulations prohibiting federally funded clinics from abortion counseling. Those rules were never put in place, and the Clinton administration required providers to counsel patients about abortion.
The earlier rules upheld by the high court are “virtually identical, if not more restrictive” than the Trump administration’s version, Justice Department lawyer Jaynie Lilley told the court Wednesday.
Attorney Andrew Tutt, representing Baltimore, told the court the rule violates a provision of the more recently approved Affordable Care Act, which forbids regulations that “interfere with communications between doctors and their patients.”
“The doctor-patient relationship is one of full disclosure and mutual trust,” he said.
Thacker, who was nominated to the bench by President Obama, agreed and particularly objected to the requirement that any referral list not disclose which providers perform abortions, even for a patient who indicates she wishes to end her pregnancy.
“Does the patient know which physicians perform abortions?” the judge asked.
“No, your honor,” Lilley responded.
“How is that providing patients full disclosure of all the relevant information? She needs to go down the list and call everybody?” Thacker asked.
Richardson noted Baltimore would not be required to provide such a list.
“HHS is not dictating what Baltimore does,” he said.
The appeals court was reviewing a decision by U.S. District Judge Richard D. Bennett of Baltimore, who said in May that new rules create “unreasonable barriers for patients to obtain appropriate medical care, interfering with communications between the patient and health care provider, and restricting full disclosure, which violates the principles of informed consent.”
Requiring providers to refer a patient to prenatal health care even when the patient has expressly stated she does not want prenatal care, for instance, is “coercive,” not neutral, as the law requires, the judge wrote.
Richardson on Wednesday asked the lawyer representing medical organizations in support of Baltimore whether the requirement for referral to prenatal care might be appropriate for a woman’s health regardless of her final decision.
The lawyer, Douglas Hallward-Driemeier, responded that such a referral would be inappropriate.
Rushing picked up on the government’s distinction between barring referrals for an abortion and what it described as neutral counseling that does not direct a specific outcome. She noted that programs are not “prohibited from mentioning” abortion.
Richardson and Rushing are recent additions to the Richmond-based appeals court and were nominated by President Trump.
Federally funded clinics in Baltimore served 7,670 clients in 2017, and the city credits the program with helping to reduce teen pregnancy by 55 percent in the past decade.