Abortion Gag Rule Stays Ahead of Full 9th Circuit Rehearing

(AP Photo/Rogelio V. Solis, File)

SAN FRANCISCO (CN) – The Trump administration’s controversial “gag rule” that bans federally funded clinics from discussing abortion with patients will stay in effect pending an en banc rehearing, the Ninth Circuit ruled Thursday.

The majority of an 11-judge en banc panel chose to uphold a three-judge Ninth Circuit panel’s June 20 decision to revive the policy pending appeal. Three lower court judges in California, Oregon and Washington state had temporarily blocked the “gag rule” before it could take effect May 3.

The rule, introduced in March, requires Title X-funded clinics to maintain “clear financial and physical separation” from centers that perform abortions. It also forbids discussing abortion with patients and requires federally funded clinics refer pregnant women to prenatal care, even if they plan to end their pregnancies.

Established in 1970 under President Richard Nixon, the Title X program funds family planning services for low-income and uninsured people. Congress in 2018 approved more than $286 million for the program, which serves 4 million people per year.

Planned Parenthood, serving 41% of Title X patients, said in a statement Thursday that the “gag rule” will force health care providers out of the program and harm millions of people who rely on Title X clinics for cancer screenings, HIV testing and birth control.

“Planned Parenthood will keep fighting to block this dangerous rule that allows the government to censor our doctors and nurses from doing their jobs,” Planned Parenthood president Leana Wen said in a statement.

Four members of the Ninth Circuit’s randomly assigned 11-judge panel dissented from the majority’s opinion Thursday.

Chief U.S. Circuit Judge Sidney Thomas and U.S. Circuit Judges William Fletcher, Richard Paez and Kim Wardlaw said they would have blocked the policy from taking effect pending en banc review. All four judges were appointed by Bill Clinton.

The panel’s majority consisted of U.S. Circuit Judges Edward Leavy, Jay Bybee, Consuelo Callahan, Milan Smith Jr., Sandra Ikuta, Eric Miller and Kenneth Lee.

Leavy was appointed by Ronald Reagan. Bybee, Callahan, Smith and Ikuta were George W. Bush appointees. Miller and Lee were appointed by President Donald Trump earlier this year.

The gag rule is opposed in court by 21 states, Washington D.C. and several family planning health care organizations.

Essential Access Health, an organization that distributes Title X funds to clinics in California, said despite facing an uphill battle in making its case to a panel of mostly Republican-appointed  judges, it remains committed to fighting the new funding restrictions in court.

“Although the order is a setback, this is still the beginning of a long judicial process and our focus has not changed,” Essential Access Health President and CEO Julie Rabinovitz said in a statement. “We are committed to doing everything possible to block these harmful and unlawful regulations from taking effect and to ensuring that patients served by Title X can receive quality, evidence-based health services.”

The U.S. Department of Health and Human Services did not immediately respond to an email seeking comment Thursday.

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