New Administration Changes Course, Wants SCOTUS to Dismiss Abortion Defunding Case

Elections have consequences, and none more obvious than the change of direction taken by the Biden Administration at the Supreme Court this week, where it has teamed up with the pro-abortion parties in two other cases in an attempt to dismiss a consolidated appeal involving Title X family planning program rules issued during the Trump administration. The dismissal action was taken after 19 states and several pro-life medical associations attempted to intervene at the high court to defend those rules when it became evident that the administration might not do so.

As The Daily Citizen previously reported, the 2019 Title X rules issued by the U.S. Department of Health and Human Services (HHS) prohibited Title X grant recipients from referring family planning clients for abortion, and required physical and financial separation of family planning services from any abortion services it also offers. In the wake of the issuance of those rules, abortion sellers such as Planned Parenthood opted out of Title X rather than comply, losing millions of dollars in the process.

The 2019 rules were challenged in federal courts on both coasts. The 9th U.S. Circuit Court of Appeals last year upheld the rules in cases from Oregon and California. Subsequently, the 4th U.S. Circuit Court of Appeals struck down the rules in a case from Maryland. Such a “circuit split” would ordinarily justify the Supreme Court’s intervention to resolve the split and arrive at one ruling that would apply nationwide. Indeed, that’s what happened when the justices accepted the cases on February 22.

But with the advent of the Biden administration, which has already signaled that it will administratively change the Title X rules back to a form which will favor abortion businesses, suddenly the appealing parties to those cases all ended up on the pro-abortion side of the issue. They apparently don’t want to risk a ruling from the justices that the Trump-era rules pass muster, so getting the appeals dismissed would eliminate the risk of a favorable high court decision. Even so, the current HHS will likely revise those rules over the coming months.

The administration’s attempt to get the appeals dismissed has not gone unnoticed.

The legal maneuver earned an immediate response from the three medical associations represented by Alliance Defending Freedom (ADF), who filed their own brief with the justices asking them to allow the cases to proceed.

“Concerned that the new Administration would fail to defend these 2019 Rules … [the three medical associations] filed a motion on March 12, 2021, to intervene on behalf of themselves and their members as petitioners in [the three consolidated cases,]” the ADF brief states.

“Minutes after Movants filed their motion, their fears were realized: the United States took the extraordinary step of filing with the opposing parties in all three cases a Joint Stipulation to Dismiss under this Court’s Rule 46.1.

“The only apparent reason for pursuing such a drastic course, as opposed to engaging in administrative actions that might moot these cases, was to prevent this Court from ruling on Movants’ Motion to Intervene or a similar Motion filed by Ohio and 18 other States and ultimately to preclude this Court’s review of the 2019 Rules.”

Although appeals can usually be routinely dismissed by the parties who bring them, ADF argues that the rules of the Supreme Court allow the justices to order the appeal to continue, and especially so when other parties have filed motions to intervene because they have a stake in the outcome. Although the ultimate decision of the justices regarding dismissal will rest on their interpretation of procedural rules governing appeals, a decision that allows the case to proceed will be advantageous for pro-lifers, with the very real possibility the justices could ultimately affirm the propriety of the 2019 Title X rules.

If such a result occurs, that would encourage future administrations with pro-life policy preferences to reinstate the rules, knowing that they have already been reviewed and approved at the highest judicial level.

Photo from Sipa USA/REUTERS