En Banc Ninth Circuit Lifts Blocks on Trump Abortion Gag Rule

SAN FRANCISCO (CN) – A divided en banc Ninth Circuit on Monday lifted three injunctions against a Trump administration rule that denies federal funding to clinics that refer women for abortions.

In a 7-4 split, the Ninth Circuit rejected arguments that the rule forces doctors to violate medical ethics by withholding information from patients or that it violates other federal laws that require doctors inform patients of all medical treatment options.

The James R. Browning U.S. Courthouse in San Francisco, home of the Ninth Circuit Court of Appeals. (Ernest McGray/Associated Press)

Enacted in 1970 under President Richard Nixon, Title X is a federal program that funds family planning services for low-income and uninsured people. Congress approved more than $286 million for the program in 2018.

Writing for the majority, U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, found that the rule is a “reasonable interpretation” of Section 1008 of Title X, which forbids using Title X funds “in programs where abortion is a method of family planning.”

Ikuta and the majority found the rule consistent with the 1991 Supreme Court decision Rust v. Sullivan, which upheld a similar Reagan administration rule that forbade Title X-funded providers from advocating abortion.

“The Supreme Court has long made a distinction between regulations that impose burdens on health care providers and their clients and those that merely reflect Congress’s choice not to subsidize certain activities,” Ikuta wrote.

The Trump administration rule, enacted by the Department of Health and Human Services in March 2019, also requires government-funded clinics to refer women to prenatal care even if they plan to end their pregnancies and mandates clinics maintain physical and financial separation from centers that provide abortion services.

Planned Parenthood, which previously served 41% of Title X patients – 1.6 million people – announced it was pulling out of the program last summer, arguing the “unethical” rule would require it to withhold factual and pertinent information from patients.

Responding to the decision, Planned Parenthood president and CEO Alexis McGill Johnson lamented that the “unethical rule” will make it harder for low-income people to access preventative care, including testing for sexually transmitted infections and cancer screenings.

“With the court failing to block the rule, Congress must take action to reverse this dangerous rule and restore access to care for millions through Title X. Planned Parenthood will never give up on our patients and we will continue to do everything we can to fight this rule,” Johnson said in a statement.

In a sharply worded dissent, U.S. Circuit Judge Richard Paez, a Bill Clinton appointee, accused the majority of ignoring the will of Congress, which has mandated Title X clinics provide “nondirective pregnancy counseling” to patients in annual appropriations bills since 1996.

“In vacating the district courts’ preliminary injunctions, the majority sanctions the agency’s gross overreach and puts its own policy preferences before the law,” Paez wrote. “Women and their families will suffer for it.”

Paaz called the rule’s impact on Title X-funded providers “Kafkaesque” and said doctors must “walk on eggshells” to avoid breaking the rule in certain situations, such as if a patient directly asks a doctor if she can get an abortion at a local hospital.

The dissenting circuit judges also rejected the majority’s position that the courts should defer to Health and Human Services’ interpretation of what “nondirective pregnancy counseling” means. According to the dissent, Congress clarified the meaning of that term in two federal laws, including one that requires adoption information be provided “on an equal basis with all other courses of action.”

“Because the gag rule requires doctors to push patients toward one option over another, it violates Congress’s mandate that patients receive counseling on their pregnancy options in a nondirective manner,” Paez wrote.

The dissent also challenged the majority’s finding that Health and Human Services properly evaluated the consequences of the rule when it found that religious-based family planning clinics would fill the gap left by providers that might choose to leave the program.

Paez called that finding a “sunny, and baseless, prediction” based only on a limited survey of faith-based family planning services providers.

The majority found the executive agency “reasonably considered” evidence and comments from opponents who say the rule will drastically reduce access to Title X programs, especially in rural areas. Citing the Supreme Court’s ruling in the 2020 census citizenship question case last year, the majority concluded the agency’s decision to enact the Title X rule “remained ‘within the bounds of reasoned decision making.’”

The Ninth Circuit’s ruling Monday dissolves three injunctions issued last year by federal judges in Oregon, Washington state and California.The Ninth Circuit had stayed those injunctions pending appeal in June 2019.

Other lawsuits against the rule are pending in courts across the country, including in Maryland, where a federal judge blocked the rule from taking effect on Feb. 18.

Essential Access Health, a nonprofit that administers federal grants for family planning clinics in California, joined the states of Oregon, Washington and California in suing to block the rule before it was set to take effect in May last year.

In a statement Monday, the nonprofit said it was extremely disappointed with the Ninth Circuit ruling.

“This is a devastating decision for the millions of low-income patients who rely on the Title X program for comprehensive, quality sexual and reproductive health care nationwide,” Essential Access Health CEO and President Julie Rabinovitz said in a statement. “We are reviewing the decision and discussing next steps with our legal team and litigation partners.”

California Attorney General Xavier Becerra called the en banc ruling “troubling.”

“This reckless rule is just another attempt by the Trump-Pence administration to roll back women’s access to reproductive health care,” Becerra said in a statement.

But Health and Human Services spokesperson Katie McKeogh said the rule is meant to improve the health of women.

“HHS included in this rule improvements designed to increase the number of patients served and improve the quality of care patients receive through the Title X program. This rule is not a ‘gag rule’ and we are pleased the Ninth Circuit agrees,” McKeogh said in an emailed statement. “Rather, HHS aims to ensure the integrity of the program so that more women and men are provided services that help them consider and achieve both their short-term and long-term family planning needs.”

U.S. Circuit Judges Edward Leavy (Reagan), Jay Bybee (G.W. Bush), Consuelo Callahan (G.W. Bush), Milan Smith Jr. (G.W. Bush), Eric D. Miller (Trump) and Kenneth K. Lee (Trump) joined Ikuta in the majority.

Chief U.S. Circuit Judge Sidney Thomas and U.S. Circuit Judges Kim McClane Wardlaw and William Fletcher – all Bill Clinton appointees – joined Paez in the dissent.


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