At issue in the case is the federal family planning program known as Title X. Baltimore’s mayor and City Council challenged the restrictions in April 2019, saying the provisions jeopardized the relationship between physicians and their patients by limiting the information doctors could provide even when a patient had stated her intention to terminate a pregnancy.
Under the rule issued last year, the Department of Health and Human Services banned health centers that provide abortions — or refer patients for abortions — from receiving any money from the 50-year-old program, which primarily serves low-income women.
Physicians can offer a list of primary health-care providers, including some who provide abortions, for instance, but cannot indicate which ones provide abortions.
The rule “requires health care providers to hide the ball from their patients by giving them a list of providers without telling them which ones actually perform abortions,” Judge Stephanie D. Thacker wrote for the majority.
“Considering the time-sensitive nature of pregnancy and access to legal abortion, this attempt to hoodwink patients creates ‘unreasonable barriers’ to ‘appropriate medical care,’ and ‘impedes timely access’ to health care services.”
The decision Thursday from the 4th Circuit is at odds with a ruling from the California-based Court of Appeals for the 9th Circuit, which allowed the policy to take effect throughout the country. The opposing decisions suggest that the Supreme Court could have to settle the disagreement.
In a dissent, Judge Julius N. Richardson said the rule “falls well within” the agency’s authority and “the record shows that it was the product of reasoned decision-making.”
The Supreme Court rejected a challenge to similar 1988 regulations, he noted, and found that the rules fell within the scope of Title X’s broad mandate.
“The majority not only thumbs its nose at the Supreme Court but substitutes its own judgment for that of an executive agency accountable to the elected President,” wrote Richardson, who was nominated by President Trump and was joined in dissenting by Judges J. Harvie Wilkinson III, Paul V. Niemeyer, G. Steven Agee, A. Marvin Quattlebaum Jr. and Allison Jones Rushing.
The Maryland case is one of several nationwide challenging the administration’s family planning rules. Planned Parenthood, the largest recipient of money from the $286 million Title X program, withdrew from the program as a result of the regulations. Maryland also backed out of the program.
Clare Coleman, president of the National Family Planning & Reproductive Health Association, said in a statement that the decision will “continue to prevent this terrible rule from further harming family planning providers and their patients across the state of Maryland.”
But, she added, “our fight endures to restore the integrity of our nation’s family planning program for the millions of people across the U.S. most in need of high-quality family planning care.”
The Justice Department did not immediately respond to a request for comment.
As part of the Maryland lawsuit, health officials in Baltimore told the court that 1 in 3 women in the city rely on publicly funded health care to obtain contraception. In 2017, government-backed clinics served more than 16,000 patients in more than 22,000 clinical visits, including for pregnancy tests and counseling, according to court filings.
The federal government has never allowed local programs to use Title X money to perform or subsidize abortions. But the new rules go further. In addition to referral restrictions, programs receiving money are required to be physically and financially separate from abortion providers.
The Justice Department told the court at oral argument that the rules previously upheld by the Supreme Court were “virtually identical, if not more restrictive,” than the Trump administration’s new rules.
But the majority said the government had failed to sufficiently show how the rules addressed ethical concerns of the medical community some 30 years after the high court’s decision.
Preventing a doctor from referring a patient “to a physician who performs abortions when the patient has requested as much, and instead, referring her for prenatal care, is far from neutral,” wrote Thacker, who was nominated to the bench by President Barack Obama.
Judge Albert Diaz, who agreed in a separate concurrence, said the new rule must be blocked because it violates provisions of the Affordable Care Act, which forbids regulations that “interfere with communications between doctors and their patients.”