                                                                      FILED: July 2, 2019

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                 ___________________

                                       No. 19-1614
                                  (1:19-cv-01103-RDB)
                                 ___________________

MAYOR AND CITY COUNCIL OF BALTIMORE

             Plaintiff – Appellee

v.

ALEX M. AZAR, II, in his official capacity as the Secretary of Health and Human
Services; DIANE FOLEY, M.D., in her official capacity as the Deputy Assistant
Secretary, Office of Population Affairs; UNITED STATES DEPARTMENT OF
HEALTH & HUMAN SERVICES; OFFICE OF POPULATION AFFAIRS

             Defendants – Appellants

                                 ___________________

                                      ORDER
                                 ___________________

       Upon consideration of submissions relative to appellants’ motion to stay the district

court’s preliminary injunction pending appeal, the court grants the motion for stay.

       Judge Richardson and Judge Rushing voted to grant the motion for stay. Judge

Thacker voted to deny the motion for stay and filed a separate dissenting statement.

                                          For the Court

                                          /s/ Patricia S. Connor, Clerk
THACKER, J., dissenting:

       I do not believe the Government has met its high burden for a stay in this matter.

       First, the Government is not likely to prevail on the merits. The 2019 Final Rule at

issue (“Final Rule”) promulgated by Health and Human Services (“HHS”) likely

contravenes provisions of the Affordable Care Act (“ACA”), 42 U.S.C. § 18114, and

Congress’ nondirective mandate in the Continuing Appropriations Act for 2019, Pub. L.

115–245, 132 Stat. 2981, 3070–71 (2018) (the “Nondirective Mandate”).

       Title X grants and contracts must be made in accordance with HHS regulations, and

no funds appropriated shall be used “in programs where abortion is a method of family

planning.” 42 U.S.C. §§ 300a–4, 300a–6. And as the district court stated, HHS has never

allowed Title X recipients to use such funds to perform or subsidize abortions. In any

event, that is not the issue here. We are dealing with a “gag rule” that prohibits Title X

recipients from counseling clients about abortion and referring them for abortions -- not

providing, performing, or paying for them.

       The Final Rule likely violates the ACA and the Nondirective Mandate, both of

which were enacted after Rust v. Sullivan, 500 U.S. 173 (1991), which was a decision

bearing on the permissibility of HHS’s regulations in a different legal landscape. Since

Rust, Congress has explicitly recognized in the ACA the importance of removing barriers

to full disclosure in a health care setting, and preserving a private and plenary consultation

between a patient and her health care provider. Indeed, the ACA clearly provides that,

notwithstanding other ACA provisions, HHS “shall not promulgate” any regulation that,
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inter alia, “interferes with communications regarding a full range of treatment options

between the patient and the provider”; “restricts the ability of health care providers to

provide full disclosure of all relevant information to patients making health care decisions”;

and “violates the principles of informed consent.” 42 U.S.C. § 18114(3), (4), (5). I cannot

fathom a more direct violation of this provision than a regulation prohibiting Title X health

care providers from referring a woman for an abortion when she requests it. What is worse,

the Final Rule actually 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.

How can this possibly be “full disclosure of all relevant information”? Id. § 18114(4). As

the district court noted, the American Medical Association has even strongly opposed this

rule for its interference in the patient-physician relationship. And President George H.W.

Bush -- addressing concerns about the 1988 regulations the Government is attempting to

revive here -- urged that under Title X, the “confidentiality of the doctor-patient

relationship be preserved,” and declared that operation of the Title X program must be

“compatible with free speech and the highest standards of medical care.” Nat’l Family

Planning & Reprod. Health Ass’n, Inc. v. Sullivan, 979 F.2d 227, 230 (D.C. Cir. 1992).

       Further, the Final Rule also likely violates the Nondirective Mandate. Since 1996 -

- again, after Rust -- Congress has mandated that under Title X, pregnancy counseling must

be “nondirective.” I find the district court’s reasoning persuasive. That is, nondirective

“counseling” encompasses referrals. HHS has even characterized referrals as part of

nondirective counseling in the Final Rule itself. See 84 Fed. Reg. at 7733 (“Congress has
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expressed its intent that postconception adoption information and referrals be included as

part of any nondirective counseling in Title X projects when it passed [§ 254c-6(a)(1)].”

(emphases supplied)). Thus, because the Final Rule requires pregnant women seeking

abortions to be referred for prenatal care, and because Title X projects cannot adequately

refer women to physicians who perform abortions when the patient requests as much, it

likely violates the Nondirective Mandate.

       I find disingenuous the Government’s statement that “a doctor’s failure to refer a

patient for an abortion does not direct the patient to do anything.” Mot. at 9. To start, it is

not a “failure” to refer when you are directed not to do so. Moreover, Congress’ use of

“nondirective” means that patients are entitled to neutral counseling. In my view, refusing

(not failing) to refer a patient to someone who actually performs abortions (when she has

requested as much) is far from neutral.

       Finally, this is not an implied repeal case, and I find the Government’s arguments

to the contrary misguided. Baltimore is not asking for a repeal of HHS’s authority to

promulgate regulations regarding Title X. Rather, it is asking us, via the Administrative

Procedures Act, to address the executive’s promulgation of a rule that is allegedly contrary

to law. See 5 U.S.C. § 706.

       For these reasons, I believe the Government is not likely to succeed on the merits.

       Second, as to the remaining requirements for a stay -- irreparable harm, balance of

the equities, and public interest -- the Government’s filings lead me to believe that its

alleged harm is grounded in its purported inconvenience and nuisance of not knowing when
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and if the Final Rule will become effective. But this alleged harm pales in comparison to

Baltimore’s submission that its longstanding and renowned health care system is in

jeopardy. Baltimore City health clinics served 7,670 Title X clients in 2017, of which

nearly one in five were under the age of 18, and almost 84% were female, and it has seen

a reduction in teen pregnancy by 55% in the last ten years. The Government’s declaration

that “the Rule simply limits what the government chooses to fund through the Title X grant

program” ignores reality. Mot. at 14. The public has a strong interest in maintaining a

check on executive agency overreach. Just ask the Founding Fathers.

       Therefore, having concluded the Government has failed to meet its burden, I vote

to deny the motion for stay.




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