En Banc Ninth Circuit Will Revisit Block of Abortion Gag Rule

SAN FRANCISCO (CN) – Eleven Ninth Circuit judges will decide whether three of their colleagues made the right call last month when they revived a temporarily blocked policy that forbids federally funded clinics from referring women to abortions.

Chief Ninth Circuit Judge Sidney Thomas announced the decision in a 2-parapgrah order Wednesday, stating that a majority of the appeals court's active, nonrecused judges voted to rehear the case en banc.

In June, a panel of three randomly assigned, Republican-appointed judges put on hold three separate injunctions blocking the Trump administration's so-called "abortion gag rule." U.S. Circuit Judges Edward Leavy, Consuelo Callahan and Carlos Bea found the policy was a reasonable interpretation of Title X, a 1970 law that established funding for family planning services for low-income and uninsured people. The law forbids using Title X funds "in programs where abortion is a method of family planning."

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

Opponents of the “gag rule,” including 21 states and the District of Columbia, say the regulations violate other federal laws, including sections of the Affordable Care Act, which forbid U.S. Health and Human Services from creating “unreasonable barriers” to obtaining appropriate medical care and “interfer[ing] with communications regarding a full range of treatment options,” among other restrictions.

The National Family Planning and Reproductive Health Association, one of several plaintiffs challenging the "gag rule," filed an emergency motion for an en banc rehearing June 24. The association claims the three-judge panel "improperly disregarded extensive factual findings" on irreparable harm that would occur absent an injunction.

The association's member clinics said in sworn declarations that the new rules would force them to either exit the Title X program or provide "substandard care in violation of their professional norms."

U.S. Judge Stanley Bastian in Yakima, Washington, found the "harmful impacts" of the rule would "uniquely impact rural and uninsured patients."

However, the three-judge Ninth Circuit panel concluded that if the rule remained blocked, the government would suffer greater harm. The panel said an injunction would force the government to spend taxpayer dollars in a way it believes violates federal law, and it would obstruct the "important policy interest" of "ensuring that taxpayer dollars do not go to fund or subsidize abortions."

Bastian and U.S. District Judge Michael McShane in Portland, Oregon, had issued nationwide injunctions against the policy. U.S. District Edward Chen in San Francisco blocked the rule from applying in California.

Essential Access Health, a nonprofit that administers Title X grants for health clinics in California, also asked the Ninth Circuit to rehear the case en banc. It argued in a court filing Monday that the three-judge panel improperly deferred to the government's “expertise” on the balance-of-harms inquiry.

"Circuit precedent is clear that the balance-of-harms determination falls squarely under the equitable power of the court, and that deference to agency 'expertise' regarding the requirements for an injunction is an abuse of discretion," Essential Access to Health lawyer Michelle Ybarra, of Keker, Van Nest & Peters in San Francisco, wrote.

California Attorney General Xavier Becerra, who also challenged the "gag rule" in court, said in a statement Wednesday that his office looks forward to "continuing our fight to protect women’s access to reproductive care."

He added, "The president & vice president have no business interfering in women’s reproductive medical decisions.”

The Justice and Health and Human Services Departments did not immediately return emails seeking comment Wednesday afternoon.

Follow @NicholasIovino

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