DOES THE HEALTH AND HUMAN SERVICE’S RULE BANNING ABORTION REFERALS UNDER TITLE X VIOLATE THE ADMINISTRATIVE PROCEDURE ACT?

BACKGROUND

In 1970, Congress enacted Title X of the Public Health Service Act “to promote public health and welfare by expanding, improving, and better coordinating the family planning services and population research activities of the Federal Government[.]” Under the act, the Secretary of the Department of Health and Human Services (HHS) is “authorized to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents).” The Act specifically states that “none of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.”

Over the past 50 years, HHS has interpreted this specific provision in different ways. In 1972, HHS interpreted this section as “not only as prohibiting the provision of abortion but also prohibiting Title X projects from in any way promoting or encouraging abortion as a method of family planning.” 53 Fed. Reg. 2922-01, 2923. In 1981, HHS went a step further and included “nondirective” counseling upon request for information on abortions, foster care, and other options. 53 Fed. Reg. at 2923. The interpretation of this subsection has changed several times through different administrations. Under the Trump administration, in 2018, HHS promulgated a rule that “a title X project may not perform, promote, refer for, or support abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion.” The rule further states that a pregnant woman must be referred to a health care provider for prenatal care and a physician may not refer the patient for an abortion, even if that is the patient’s desire.

THE ISSUE

Under Title X of the Public Health Service Act, did the Department of Health and Human Services have authority to promulgate a Final Rule banning service providers who receive federal money from referring patients for abortions?

THE SPLIT

The Fourth and Ninth Circuits have interpreted the subsection regarding the provision prohibiting abortion as a means of family planning. The Fourth Circuit claims that HHS was arbitrary and capricious in its rulemaking thus violating the Administrative Procedure Act (APA), while the Ninth Circuit upheld the Final Rule.

The Fourth Circuit

The Mayor and City Council of Baltimore filed suit against Alex Azar II, Secretary of HHS, alleging that the Final Rule violated the APA. In Chevron v. Natural Resources Defense Council (1984), the Supreme Court established a two-step test to determine if an agency should be given deference in a rulemaking. The first step is to determine whether the statute under which the rule was promulgated is ambiguous. The second step is to determine if the agency acted in an arbitrary and capricious manner in promulgating the rule and if the agency interpreted the statute in a reasonable manner. The Fourth Circuit, en banc, in Mayor & City Council of Baltimore v. Azar (2020), held that the Final Rule was arbitrary and capricious because HHS “inadequately explained its decision ‘to disagree with comments by every major medical organization regarding the Final Rule’s contravention of medical ethics’ . . . and inadequately considered the ‘likely costs and benefits of the physical separation requirement.’” The court asserted that HHS failed to consider all of the nation’s major medical organizations concerns when promulgating the rule. Further, the court found that the agency was “arbitrary and capricious because ‘the administrative record reflects comments estimating the likely cost of the requirement far exceeds HHS’s estimate of $30,000.’” Moreover, the court determined that the rule is unlawful as it violates the “nondirective” counseling requirement in Title X programs because mandating prenatal care is a form of “directive” counseling. Lastly, the court held that the rule interfered with physician-patient communications.

The Ninth Circuit

Contrary to the Fourth Circuit’s holding, the Ninth Circuit upheld the Final Rule promulgated by HHS. In State of California v. Azar (2020), the court distinguished between counseling and referrals. The court held that providers “‘may discuss abortion’ so long as ‘the counselor neither refers for, nor encourages, abortion’” thus, the “nondirective” counseling provision was not violated. Furthermore, the court asserted that the agency was reasonable in its interpretation of Title X and was not arbitrary and capricious in promulgating the rule. Under Chevron step two, the court deferred to the “agency’s expertise in identifying the appropriate course of action.”

LOOKING FORWARD

The Final Rule promulgated by HHS under the Trump administration is an attempt by the administration to limit a woman’s right to abortion. Title X mainly serves low-income families and people of color. According to Planned Parenthood, 21% of Title X recipients identify as African American or Black and nearly 32% identify as Latino. The Final Rule will most adversely impact these populations. In cases where there is a circuit split, the Supreme Court often becomes the deciding factor. The Supreme Court will be the final word in whether HHS’s rule was promulgated in a valid manner if they decide to hear the case. The Trump administration filed a petition for writ of certiorari to the Supreme Court in Azar v. Mayor & City Council of Baltimore, but the case has not yet been listed for conference. Only time will tell if the Supreme Court will hear this case. Additionally, with the new administration taking office, the case may be become mute if the rule is rescinded or is amended to allow abortion referrals.

 

 

Knock-knock, “Open up it’s the Poli… Housekeeping!”

BACKGROUND

The Fourth Amendment states “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

There are some limited exceptions to the warrant requirement, like “exigent circumstances,” where a reasonable law enforcement officer would believe a warrantless search and seizure is necessary—for example to prevent physical harm, destruction of evidence, or a suspect’s escape. The Supreme Court, in Cady v. Dombrowski (1973), recognized a “community caretaking” exception to the Fourth Amendment warrant requirement, which acknowledges that police officers carry out “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” When established, the exception was designed only for warrantless searches of motor vehicles to aid those in distress, combat actual hazards, prevent potential hazards from materializing and provide services to preserve and protect public safety. United States v. Rodriguez-Morales (1st Cir. 1991). Since Cady, courts have expanded the “community caretaking” exception.

THE ISSUE

Does the “community caretaking” exception to the Fourth Amendment’s warrant requirement extend beyond the context of motor vehicles to the home?

THE SPLIT

The Third, Seventh, Ninth Circuits, and likely the Tenth Circuit have held that the “community caretaking” exception does not extend to the home. The First, Fifth, and Eighth Circuits have extended the “community caretaking” exception beyond the motor vehicle context, justifying, under certain circumstances, a warrantless entry into an individual’s home.

The Third, Seventh, and Ninth Circuits – Does Not Extend to the Home

The Ninth Circuit established its view on how far the exception established in Cady applies in United States v. Erickson(1993). In Erickson, a police officer investigating a suspected burglary, pulled back plastic from an open window in a basement, revealing numerous marijuana plants. The officer then proceeded to obtain a warrant and arrest the homeowner. The court held that even if the officer was performing a community caretaking function at the time, that alone cannot justify the warrantless search prior to obtaining the warrant. The court concluded “Cady clearly turned on the ‘constitutional difference’ between searching a house and searching an automobile.”

The Third Circuit in Ray v. Township of Warren (2010) similarly concluded that the “community caretaking” exception established in Cady “expressly distinguished automobile searches from searches of a home.” In Ray, police officers, fearing that a child in a home may be in danger, entered the home without a warrant. The court held that the “community caretaking” exception does not override the warrant requirement of the Fourth Amendment in the context of the home.

The Seventh Circuit, in Sutterfield v. City of Milwaukee (2014) also declined to extend the “community caretaking” exception to the home. Here, police officers forcibly entered the home of a potentially suicidal individual to effectuate an emergency detention for a mental health evaluation. Officers detained the homeowner, performed a protective sweep of the home, and seized a firearm that was inside a locked CD case. Guided by its earlier decision in United States v. Pichany (1982), the Seventh Circuit decided that the exception “extended only to automobiles temporarily in police custody.” The court, however, held that the entry and subsequent sweep were justified by the “exigent circumstances” exception. The search of the CD case was unlawful because the gun was not in plain view and the search was based on a hunch.

The Tenth Circuit is less clear, but appears to agree.  In  United States v. Bute (1994), which concerned a commercial building and garage, the Tenth Circuit concluded that the “community caretaking” exception to the Fourth Amendment warrant requirement is “applicable only in cases involving automobile searches.” Thus, the Tenth Circuit most likely would not have extended the exception to the home had one been the subject of the case.

Sixth Circuit holdings are mixed. The Sixth Circuit in United States v. Rohrig (1996) recognized that warrantless entry into the home may be permissible when police officers are acting as community caretakers to stop a significant noise nuisance. The question remained as to whether this is permissible under the “exigent circumstances” or “community caretaking” exception. However, in United States v. Williams (2003), the Sixth Circuit concluded that Rohrig did not extend the “community caretaking” exception into the home, stating “we doubt that community caretaking will generally justify warrantless entries into private homes.”

The First, Fifth, and Eighth CircuitsExtends to the Home

The Eighth Circuit in United States v. Quezada (2006) did not exactly conclude that the “community caretaking” exception extends to the home, but that “a police officer may enter a residence without a warrant as a community caretaker where the officer has a reasonable belief that an emergency exists requiring his or her attention.” This standard is more like a modified exigent circumstances test, which lowers the threshold for exigency when the officer is acting as a community caretaker.

The Sixth Circuit appears to agree with the Eighth. In United States v. Rohrig (1996), the Sixth Circuit recognized that warrantless entry into the home may be permissible when police officers are acting as community caretakers to stop a significant noise nuisance. The question remained as to whether this is permissible under the “exigent circumstances” or “community caretaking” exception. However, in United States v. Williams (2003), the Sixth Circuit concluded that Rohrigdid not extend the “community caretaking” exception into the home, stating “we doubt that community caretaking will generally justify warrantless entries into private homes.”

The Fifth Circuit in United States v. York (1990) extended the “community caretaking” exception to the home. Here, the guests of a home feared for their safety, requesting the assistance of deputies so they could collect their belongings and vacate. The deputies entered without a warrant, and later contacted the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) about firearms seen in plain view. The court applied a reasonable foreseeability standard in determining whether a search/seizure is lawful. The court concluded that the community caretaking function of the police here was reasonably foreseeable.

The First Circuit in Caniglia v. Strom (2020) similarly extended the “community caretaking” exception to the home, but instead applied a three-part test. Here, after a domestic dispute, police believed it was reasonable to seize the appellant homeowner’s firearms, fearing that he could be in danger should the guns remain in the home. The court held that the core purpose of the “community caretaking” exception should not be limited to the motor vehicle context, and under the right circumstances may be extended to the home. The court determined that for the “community caretaking” exception to be lawful the court must consider (1) if there is an objectively reasonable basis for believing the individual is suicidal or otherwise poses an imminent risk of harm to himself or others; (2) if there is an objectively reasonable basis for thinking that the individual may use firearms seized in the immediate future for harming himself or others; and (3) if the entry into the home is appropriate when “tailored to the seizure of firearms in furtherance of police officers’ community caretaking responsibilities.”

These approaches are to some degree inconsistent, applying different tests and examining different conditions to determine if warrantless entry into the home is justified under the “community caretaking” doctrine. What they do show, however, is that under the right circumstances, such entry may be justified.

LOOKING FORWARD

The U.S. Supreme Court granted certiorari in Caniglia v. Strom on November 20, 2020. Not only will this case provide clarity to state and federal law enforcement on the extent to which police may intrude into the home, but this case may also shine a light on how the new Court will decide individual liberty issues going forward. An evolution of the “community caretaking” exception may be viewed by some as a blank check to police to evade the warrant requirement in order to serve the community’s interest. Others may argue that the “community caretaking” exception is faithful to the Fourth Amendment because it gives “police elbow room to take appropriate action when unforeseen circumstances present some transient hazard that requires immediate attention, [which] should not be limited to the motor vehicle context.” While some cases find that the “community caretaking” exception is limited solely to the motor vehicle context, others have allowed warrantless entry in contexts that are neither homes nor cars. For further reading, see Stop Hammering Fourth Amendment Rights: Reshaping the Community Caretaking Exception with the Physical Intrusion Standard, 97 Marq. L. Rev. 123 (2013).

Private Foreign Arbitration: Can U.S. Federal Courts Compel Discovery?

BACKGROUND

Section 1782 of Title 28 defines the “scope of discovery that foreign litigants may seek in the United States for use in foreign proceedings.” Specifically, Section 1782(a) authorizes the district court to compel discovery “for use in a proceeding in a foreign or international tribunal.” 

The Supreme Court encountered a Section 1782(a) dispute in the case of Intel Corp. v. Advanced Micro Devices, Inc. (2004). The Court held that Section 1782(a) “authorizes, but does not require discovery assistance,” and the Court decided to “leave it to the courts below to ensure an airing adequate to determine what, if any, assistance is appropriate.” The Court in Intel, however, only considered whether Section 1782(a) discovery would apply to public foreign tribunals; where it concluded that it would. The Court remained silent on whether Section 1782(a) discovery would also apply to private foreign arbitration, leading to the current division among the Circuit Courts. 

THE ISSUE

Is the definition of “foreign or international tribunal” under 28 U.S.C. 1782(a) limited only to state-sponsored public tribunals; or does the definition include discovery for private foreign tribunals as well? In other words, can district court judges compel discovery for private foreign arbitration?

THE SPLIT

The Seventh Circuit recently joined the Second and Fifth Circuits by adopting a narrow interpretation of “foreign or international tribunal” to only include public tribunals and exclude private ones. These circuits conclude that compelling discovery in private foreign disputes would undermine the speedy and cost-effective nature of the arbitration process. In recent years, however, the Fourth and Sixth Circuits have disagreed, opting for a broad interpretation of Section 1782(a). These circuits posit that the purpose of the Section 1782(a) is to foster international cooperation through discovery processes and conclude that district courts should have the discretion to apply Section 1782(a) to all foreign tribunals, both public and private. 

The Second, Fifth, and Seventh Circuits

In September 2020, the Seventh Circuit joined the Second and Fifth Circuits in affirming a narrow interpretation of Section 1782(a). In Servotronics, Inc. v. Rolls-Royce PLC (2020), (“Servotronics II”), the court held that Section 1782(a) “did not authorize the district court to compel discovery for use in a private foreign arbitration.” There was a separate case arising from the same arbitration that came before the Fourth Circuit in March 2020 and is discussed below. In Servotronics II, Rolls-Royce had manufactured an engine for a Boeing aircraft and incorporated a Servotronics valve in the design. The airplane was then destroyed in a fire during testing, and Rolls-Royce settled with Boeing for the loss of the plane. Subsequently, Rolls-Royce, a UK-based corporation, sought indemnification from Servotronics, which was based in the United States. The two companies had a long-term agreement that mandated binding arbitration in a London-based private tribunal called the Chartered Institute of Arbiters (“CIArb”). Servotronics then applied for a Section 1782(a) discovery request that would compel Boeing to produce documents that would be used in the London arbitration. The district court judge ultimately denied this discovery request, finding for Rolls-Royce and Boeing.

In interpreting Section 1782(a), the Seventh Circuit affirmed the district court ruling, stating that “foreign or international tribunal” should be defined as “a governmental, administrative, or quasi-governmental tribunal operating pursuant to the foreign country’s practice and procedure.” This definition would consequently exclude any private foreign arbitrations. The Seventh Circuit rejected the Fourth and Sixth Circuit’s broad definition of “foreign and international tribunals,” which included private arbitration. The Seventh Circuit noted that if the ambiguity of the word “tribunal” was interpreted broadly, this could expand the ability of federal courts to compel discovery in foreign arbitration past what is normally allowed in domestic arbitration. 

In January 1999, the Second Circuit was one of the first to confront an issue concerning Section 1782(a) in NBC v. Bear Stearns & Co. (1999). In NBC, the plaintiff, US-based news corporation NBC was involved in a Mexican arbitration with Mexican television broadcasting company Azteca, of which Bear Sterns was an investor. In interpreting Section 1782(a), the Second Circuit noted that “although the phrase ‘foreign or international tribunal’ does not unambiguously exclude private arbitral panels, neither does it unambiguously include them.” The court then concluded that the phrase, considered in the context of statutory and legislative history, is limited to public foreign arbitration and not private tribunals. Two months after the Second Circuit’s decision in NBC, the Fifth Circuit adopted this narrow interpretation of Section 1782(a) in Republic of Kazakhstan v. Biedermann Int’l (1999). The Fifth Circuit held that the statute was “not intended to authorize resort to United States federal courts to assist discovery in private international arbitrations.” The court highlighted the concern that allowing for discovery in private arbitrations would “complicate and undermine” the entire international arbitration process. 

The Fourth and Sixth Circuits

The Fourth and Sixth Circuits have both held that a broad definition of Section 1782(a) is more appropriate. In March 2020, the Fourth Circuit analyzed the scope of 1782(a) in the Servotronics, Inc. v. Boeing Co. (2020), (“Servotronics I”), a case arising from the same arbitration dispute that would later come before the Seventh Circuit. The Fourth Circuit came to a very different result than the Seventh Circuit, reasoning that the “district court functions effectively as a surrogate for a foreign tribunal by taking testimony and statements for use in the foreign proceeding” under Section 1782(a). The Fourth Circuit concluded that the application of Section 1782(a) should be determined by district courts and not parties, so the district courts should possess the ability to compel discovery for private foreign arbitrations. 

The Fourth Circuit’s decision in Servotronics I aligns with the Sixth Circuit’s September 2019 decision in Abdul Latif Jameel Transportation Co. v. FedEx Corp. (2019). In Abdul, the Sixth Circuit held that the word “tribunal” should be interpreted broadly and the “district court’s authority to compel discovery for use in foreign litigation extends to private foreign arbitrations.” The court stressed that the Supreme Court decision in Intel made the application of Section 1782(a) discretionary, and the broad interpretation would be best for giving this discretion to the district courts. 

LOOKING FORWARD

At this point, Rolls-Royce stated that it intended to file a petition for writ of certiorari to the Supreme Court. Whether or not the Servotronics case moves forward, the Court should review the interpretation of Section 1782(a) at some point, resolving the confusion left by Intel. If the Supreme Court opted for a broad interpretation of Section 1782(a), as given by the Fourth and Sixth Circuits, there would likely be a substantial increase in discovery for foreign private arbitrations, increasing costly litigation and further burdening the courts. 

Additionally, there is a pending case, HRC-Hainan Holding Co., LLC v. Yihan Hu (2020), before the Ninth Circuit that concerns a Section 1782(a) dispute involving discovery into a Chinese in vitro fertilization project that is before a Chinese arbitration commission. So, it will also be interesting to see what the Ninth Circuit decides and whether a decision, in this case, comes before a Supreme Court ruling on this issue.