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Ninth Circuit Declines Stay for Title X Abortion Gag Rule

The Ninth Circuit allowed the Trump administration's so-called "abortion gag rule" for Title X-funded health clinics to take effect Thursday, a move critics say will limit low-income women's access to reproductive health care.

SAN FRANCISCO (CN) – The Ninth Circuit allowed the Trump administration's so-called "abortion gag rule" for Title X-funded health clinics to take effect Thursday, a move critics say will limit low-income women's access to reproductive health care.

"The news out of the Ninth Circuit this morning is devastating for the millions of people who rely on Title X health centers for cancer screenings, HIV tests, affordable birth control and other critical primary and preventive care," Planned Parenthood president Leana Wen said in a statement Thursday morning.

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.

In March, U.S. Health and Human Services Secretary Alex Azar introduced a new rule that requires Title X-funded providers maintain "clear financial and physical separation" from centers that perform abortions. The so-called "gag rule" also 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.

Before the new rule could take effect on May 3, three judges in Washington state, Oregon and California granted preliminary injunctions against it. U.S. District Judge Stanley Bastian in Yakima, Washington, and U.S. District Judge Michael McShane in Portland, Oregon, issued nationwide injunctions. U.S. District Edward Chen in San Francisco blocked the rule from applying in California.

On Thursday, a unanimous three-judge Ninth Circuit panel stayed those injunctions pending appeal. The panel found the new rule was a "reasonable interpretation" of Section 1008 of Title X, which forbids using Title X funding "in programs where abortion is a method of family planning."

Opponents of the “gag rule,” including 21 states and Washington D.C., say the regulations violate other federal laws, including sections of the Affordable Care Act. The 2010 law forbids 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 between the patient and provider," among other restrictions.

The panel found the Affordable Care Act could only render the regulation inconsistent with the law by repealing or amending Section 1008 of Title X, which forbids funding abortion providers.

Opponents also cited an appropriations rider that Congress has attached to Title X funding authorizations since 1996. The rider states "all pregnancy counseling shall be non-directive."

The Ninth Circuit panel rejected that argument, finding a referral to prenatal services is not the same as counseling.

"It is not clear that referring a patient to a non-abortion doctor is necessarily 'directive,'" the 25-page per curiam order said.

The circuit judges also cited the Supreme Court's 1991 decision in Rust v. Sullivan, which upheld a similar Reagan administration rule that forbid Title X-funded providers from advocating abortion.

Additionally, the three-judge panel found the government would suffer irreparable harm without a stay because it would be forced to spend taxpayer dollars in a way it believes violates the law, and it would obstruct the "important policy interest" of "ensuring that taxpayer dollars do not go to fund or subsidize abortions."

That harm, the circuit judges concluded, is greater than a steep decline in reproductive health care providers for low-income people that opponents say will occur absent an injunction.

California Attorney General Xavier Becerra, who fought the funding restrictions in court, said the Ninth Circuit's decision risks cutting millions of Americans' access to critical health care services.

"This ruling allows the Trump-Pence administration to prohibit doctors and other medical providers from giving factual, unbiased information to patients," Becerra said.

U.S. Circuit Judges Edward Leavy, Consuelo Callahan and Carlos Bea made up the panel.

Leavy was appointed by Ronald Reagan. Callahan and Bea were appointed by George W. Bush.

The Ninth Circuit's ruling does not affect a Maryland federal judge's ruling on Wednesday that blocked the Title X restrictions from applying to providers in Baltimore.

The U.S. Departments of Justice and Health and Human Services did not immediately return emails seeking comment Thursday.

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