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Cochran v. Mayor and City Council of Baltimore

Description:  A U.S. Department of Health and Human Services rule prevents federal family-planning funding under the Title X program from being used for abortions. Even though the HHS final rule essentially revives one that the U.S. Supreme Court already found constitutional in a previous case, it is still being challenged by those who don’t like it.


U.S. Department of Health and Human Services building, Washington, DC

US Supreme Court to weigh in on HHS rule barring federal funding of abortion

ADF attorneys filed friend-of-the-court brief in favor of final rule that revives Title X regulations high court already approved
Monday, Feb 22, 2021

WASHINGTON – The U.S. Supreme Court agreed Monday to take a case concerning a U.S. Department of Health and Human Services rule that prevents federal family-planning funding under the Title X program from being used for abortions. The U.S. Court of Appeals for the 4th Circuit blocked the HHS regulations in Maryland while a 9th Circuit decision in a separate case upheld them. The rulings create a split between the circuits that only the Supreme Court can resolve.

In November of last year, Alliance Defending Freedom attorneys representing two pro-life medical associations filed a friend-of-the-court brief encouraging the Supreme Court to take the case. The brief explained that the HHS final rule essentially revives one that the high court already found constitutional in a previous case and should therefore be upheld.

“No court can substitute its own policy views for the views of the elected branches of government,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch. “For that reason, this case is important regardless of the fact that we have a new administration. The Supreme Court has already recognized that the federal government has the authority to prevent Title X funds from being used for abortion. Now the court’s guidance is needed to make clear that any administration, including future ones, can enforce a rule like this one if it so chooses, and that the courts can’t interfere with that. The 4th Circuit chose instead to rely on the preferences of pro-abortion medical associations. That was wrong. The Supreme Court should affirm that HHS has the authority to issue a rule that the high court already deemed constitutional.”

As ADF explained in its brief filed in Azar (now Cochran) v. Mayor and City Council of Baltimore on behalf of the American Association of Pro-Life Obstetricians & Gynecologists and the Christian Medical and Dental Associations, the HHS final rule “essentially revives Title X regulations this Court approved in Rust v. Sullivan.” What’s more, the brief continues, “Congress writes the laws, and the executive implements them.”

“There is no role for the courts to impose their own policy preferences in place of duly enacted laws and proper regulations,” Bursch said.

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.

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ABOUT John Bursch

John Bursch is senior counsel and vice president of appellate advocacy with Alliance Defending Freedom. Bursch has argued 12 U.S. Supreme Court cases and more than 30 state supreme court cases since 2011, and a recent study concluded that among all frequent Supreme Court advocates who did not work for the federal government, he had the 3rd highest success rate for persuading justices to adopt his legal position. Bursch served as solicitor general for the state of Michigan from 2011-2013. He has argued multiple Michigan Supreme Court cases in eight of the last ten terms and has successfully litigated hundreds of matters nationwide, including six with at least $1 billion at stake. As part of his private firm, Bursch Law PLLC, he has represented Fortune 500 companies, foreign and domestic governments, top public officials, and industry associations in high-profile cases, primarily on appeal. He received his J.D. magna cum laude in 1997 from the University of Minnesota Law School and is admitted to practice in numerous federal district and appellate courts, including the U.S. Supreme Court.