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Oregon, et al. v. Xavier Becerra, Secretary of Health and Human Services, et al.

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 19-15974, 19-35386 · judgment February 24, 2020

Certiorari granted · February 22, 2021
Pre-decision estimate: 9% cert probability (95% interval 6%–12%)

Before the decision, about 2.2× the 4.1% base rate. The model weighted this up for a Ninth Circuit decision below, a circuit split argued in the petition, and a dissent in the court below (flagged in the petition).

Questions presented

Consolidated with 20-429. For fifty years, the federal government has funded family-planning and reproductive healthcare services for low-income and underserved patients through Title X of the Public Health Services Act, codified at 42 U.S.C. § 300 et seq. In 2019, the Department of Health and Human Services (HHS) promulgated a rule that, among other things, prohibits Title X providers from communicating certain abortion related information to their patients, and requires physical separation of Title X-funded care from healthcare facilities that provide abortion services or certain abortion-related information. The questions presented are:

  1. Does the Final Rule violate appropriations statutes requiring that “all pregnancy counseling” in the Title X program “shall be nondirective”?

  2. Does the Final Rule violate § 1554 of the Affordable Care Act (ACA), which prohibits HHS from promulgating “any regulation” that creates “unreasonable barriers” to obtaining appropriate medical care; impedes “timely access” to such care; interferes with patientprovider communications “regarding a full range of treatment options”; restricts providers from disclosing “all relevant information to patients making health care decisions”; or violates providers’ ethical standards?

  3. Is the Final Rule arbitrary and capricious, in violation of the Administrative Procedure Act, including by failing to respond adequately to concerns that (a) the rule requires medical professionals to violate medical ethics and (b) the counseling restrictions and physicalseparation requirement impose significant costs and impair access to care?

Counsel of record

For petitioner
Barbara Dale Underwood
Solicitor General

For respondent
Brian H. Fletcher
Acting Solicitor General

Case

Conference history
Distributed for 3 conferences

Related
Vide, 20-429, 20-454

Proceedings

  1. May 17 2021
    The Government has filed a letter brief representing that it will continue enforcing the challenged rule and regulations outside the State of Maryland for as long as they remain operative. If further litigation is brought against the challenged rule and regulations outside of Maryland, the Government represents that it will either oppose that litigation on threshold grounds or seek to hold the litigation in abeyance pending the completion of notice and comment. In light of the Government’s representations, the motions for leave to intervene are denied, and the petitions in Nos. 20-429, 20-454, and 20-539 are dismissed pursuant to Rule 46.1. If the Government fails to enforce the challenged rule and regulations outside of Maryland prior to the completion of notice and comment, or if litigation is brought against the challenged rule and regulations outside of Maryland, any aggrieved party may file an application in this Court after seeking relief in the appropriate District Court and Court of Appeals. Justice Thomas, Justice Alito, and Justice Gorsuch would grant the motions for leave to intervene and deny the stipulations to dismiss the petitions.
  2. Mar 12 2021
    Joint stipulation to dismiss the cases in Nos. 20-429 and 20-539 pursuant to Rule 46.1 filed. VIDED.
  3. Feb 22 2021
    Petition GRANTED. The petitions for writs of certiorari in Nos. 20-429 and 20-454 are granted. The cases are consolidated, and a total of one hour is allotted for oral argument. VIDED.
  4. Feb 22 2021
    Because the Court has consolidated these cases for briefing and oral argument, future filings and activity in the cases will now be reflected on the docket of No. 20-429. Subsequent filings in these cases must therefore be submitted through the electronic filing system in No. 20-429. Each document submitted in connection with one or more of these cases must include on its cover the case number and caption for each case in which the filing is intended to be submitted. Where a filing is submitted in fewer than all of the cases, the docket entry will reflect the case number(s) in which the filing is submitted; a document filed in all of the consolidated cases will be noted as “VIDED.”
  5. Feb 12 2021
    DISTRIBUTED for Conference of 2/19/2021.
  6. Jan 19 2021
    DISTRIBUTED for Conference of 1/22/2021.
  7. Dec 23 2020
    DISTRIBUTED for Conference of 1/8/2021.
  8. Dec 22 2020
    Reply of petitioners Oregon, et al. filed. (Distributed)
  9. Dec 04 2020
    Brief for the Federal Respondents filed. VIDED.
  10. Nov 13 2020
    Motion to extend the time to file a response is granted and the time is extended to and including December 23, 2020.
  11. Nov 12 2020
    Motion to extend the time to file a response from November 23, 2020 to December 23, 2020, submitted to The Clerk.
  12. Oct 05 2020
    Petition for a writ of certiorari filed. (Response due November 23, 2020)