Amy Howe

Mar 13 2021

Biden administration, challengers ask court to dismiss litigation over abortion-referral “gag rule”

Yet another dispute is likely to disappear from the court’s docket after a change in position by the Biden administration. Acting Solicitor General Elizabeth Prelogar and lawyers for state and local governments and non-profit groups on Friday night asked the court to dismiss a trio of cases challenging regulations issued by the Trump administration in 2019 that barred clinics that receive federal family-planning funds from providing abortion referrals – the so-called “gag rule.”

The three cases – American Medical Association v. Cochran, Cochran v. Mayor and City Council of Baltimore and Oregon v. Cochran – came to the Supreme Court last fall, after one federal appeals court upheld the rule against two challenges and another one struck it down. The justices agreed to weigh in last month, but by then the Biden administration had already ordered the Department of Health and Human Services to consider rescinding the 2019 rules.

In two short filings on Friday night, Prelogar and lawyers for the challengers asked the court to dismiss the cases pursuant to Supreme Court Rule 46.1, which instructs the clerk of the Supreme Court to dismiss cases – without needing the justices’ permission – when all sides agree. The motions noted that a different group of states and a group of anti-abortion medical associations have asked to enter the case in order to defend the rules, but Prelogar and the challengers said that those requests do not prevent them from agreeing to dismiss the case under Rule 46.1.

Friday’s request is the latest in a series of changes to the Supreme Court’s docket as a result of shifts in position by the Biden administration. On Thursday the Supreme Court called off an oral argument, scheduled for late March, on a controversial Medicaid work requirement; the court has also recently dismissed pending cases or canceled oral arguments involving Trump-era policies on green-card applicants, so-called “sanctuary cities,” the “remain in Mexico” policy for asylum seekers, and funding for a wall along the U.S.-Mexico border.

This post is also published on SCOTUSblog.

Amy L Howe
Until September 2016, Amy served as the editor and reporter for SCOTUSblog, a blog devoted to coverage of the Supreme Court of the United States; she continues to serve as an independent contractor and reporter for SCOTUSblog. Before turning to full-time blogging, she served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there. From 2004 until 2011, she co-taught Supreme Court litigation at Stanford Law School; from 2005 until 2013, she co-taught a similar class at Harvard Law School. She has also served as an adjunct professor at American University’s Washington College of Law and Vanderbilt Law School. Amy is a graduate of the University of North Carolina at Chapel Hill and holds a master’s degree in Arab Studies and a law degree from Georgetown University.
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