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.
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.