WASHINGTON, DC – Following oral argument at the U.S. Court of Appeals for the Sixth Circuit this morning in Tennessee v. Becerra, Constitutional Accountability Center Appellate Counsel Miriam Becker-Cohen issued the following reaction:

In this case, Tennessee is asking the Sixth Circuit to order the federal government to reinstate its Title X funding even though the state has refused to comply with an unambiguous condition of that funding: to offer nondirective counseling and referral (upon request) for abortion care. However, as we explained in our amicus brief filed in this case, the problem for Tennessee is that a panel of the Sixth Circuit has already ruled—in a case decided just last year called Ohio v. Becerra—that that funding condition is lawful under the Title X statute. That should be the end of this case.

Instead, today, Tennessee dedicated most of its oral argument to asserting that the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overruled the Chevron doctrine, calls the Ohio v. Becerra ruling into question because it applied Chevron. Judge Kethledge further advanced this notion, asserting that “the ground shifted in a fundamental way during the pendency of this very appeal” and that judges, not agencies, now must “actually interpret” the Title X statute. In many ways, Judge Kethledge’s line of questioning illustrates the degree to which the Loper Bright decision effected a massive transfer of power to judges, emboldening them to reconsider long-established policy decisions.

Yet Loper Bright was clear: “we do not call into question prior cases that relied on the Chevron framework.” Thus, this case should be easy, and the Sixth Circuit—just like the Tenth Circuit did earlier this week—should hold that the federal government acted well within its authority in refusing to award Title X funding to Tennessee.

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Resources:

Case page in Tennessee v. Becerra: https://www.theusconstitution.org/litigation/tennessee-v-becerra/