Abortion Gag Rule Draws Ire of Fourth Circuit Judge

RICHMOND, Va. (CN) – A Fourth Circuit judge showed little patience Wednesday as a government attorney defended a new Health and Human Services policy barring publicly funded family planning doctors from referring women for abortions.

“We are a bunch of lawyers talking about the doctor-patient relationship,” U.S. Circuit Judge Stephanie Thacker grumbled as attorneys disputed whether the March 2019 policy violates the non-interference mandate of the Affordable Care Act, which was meant to stop the government from interfering with communications between doctors and their patients.

“Is that not intervention?” the Obama appointee asked.

But Thacker appeared to be the lone voice in opposition to the policy. She was flanked by two appointees of President Donald Trump, U.S. Circuit Judges Julius Richardson and Allison Jones Rushing, who seemed to back the policy.

In March, Health and Human Services Secretary Alex Azar introduced a new rule that requires Title X-funded providers to maintain “clear financial and physical separation” from centers that perform abortions. The so-called “gag rule” forbids Title X-funded providers from discussing abortion with patients and requires referring pregnant women to prenatal care, even if they plan to end their pregnancies.

“It allows counselors to talk about abortions but it bans referrals,” Justice Department attorney Jaynie Lilley told the three-judge panel Wednesday.

Baltimore receives about $1.4 million each year in federal funding subject to Title X rules for community clinics and health centers that provide contraceptive and family planning services for low-income women. The city sued after the new policy was announced and won a preliminary injunction in district court, prompting the government’s appeal to the Fourth Circuit.

Thacker, between grimaces and eye rolls, grilled the federal government’s lawyer on how the process would play out if a woman, after attending a publicly funded clinic, wanted an abortion and was instead handed a list of doctors with no clear inclination of who would perform the procedure.

“She has to call down the list, and she probably won't ask for an abortion over the phone so she’ll make an appointment. And the first appointment she’ll schedule probably won’t do abortions because most don’t,” the judge said. “And time is of the essence here.”

“She’ll have to seek them outside the Title X program,” Lilley replied.

Judge Richardson spoke up when Andrew Tutt, the Arnold & Porter lawyer who argued on behalf of Baltimore, tried to press the speech limits the policy put on doctors.

The judge wondered if the non-interference mandate was itself a limit of speech, saying it forced doctors to provide all options.

“Does the directive not limit the doctor’s opinion?” he asked.

“No, that’s not medically acceptable,” Tutt responded, noting the nature of the previous mandate was the availability of all options whereas the new policy was aimed at removing one: abortion.

As the debate over the medically acceptable nature of the Trump administration policy continued, Richardson stressed that HHS made the policy after taking in public comment, including those from organizations like the American Medical Association and the American College of Obstetricians and Gynecologists.

“HHS saw the comments and considered it a different way,” he said.

“They are supposed to take it and apply it,” Tutt argued, pointing to amicus briefs authored by those medical groups and others who all consider the policy medically unnecessary and ethically compromising. “They represent 90% of America’s obstetricians.”

The judges did not indicate when they will issue a ruling in the case.

Last month, Planned Parenthood announced it was leaving the Title X program because of the Trump administration’s gag rule.

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