Title X Abortion Gag Rule Probed by En Banc Ninth Circuit

Activists gather in the Utah State Capitol Rotunda to protest abortion bans happening in Utah and around the country, in Salt Lake City, May 21, 2019. About 39,000 people received treatment from Planned Parenthood of Utah in 2018 under a federal family planning program called Title X. The organization has pulled out of the program rather than abide by a new Trump administration rule prohibiting clinics from referring women for abortions. (AP Photo/Rick Bowmer)

(CN) – A Trump administration rule stripping federal funding of clinics that refer women to abortions got a long hard look Monday from a panel of 11 Ninth Circuit judges.

Ruth Harlow, an attorney with the ACLU representing a group of state governments and health care providers, argued the new rules are unnecessary and that the government has “irrationally prioritized layers upon layers of compliance burdens” to prevent federal dollars from being spent on abortion, a problem she said doesn’t exist.

In May 2018, the U.S. Department of Health and Human Services introduced a rule requiring federally funded clinics maintain “clear financial and physical separation” from centers that perform abortions. It also requires funded clinics to refer pregnant women to prenatal care even if they plan to end their pregnancies. Exceptions include cases of rape, incest or medical emergency.

Though three lower courts in California, Oregon and Washington state temporarily blocked the so-called 2018 “gag rule” before it could take effect in May of this year, three Ninth Circuit judges revived it in June.

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 prohibits using Title X funds “in programs where abortion is a method of family planning.”

Leavy and Callahan sat on Monday’s en banc panel alongside Chief U.S. Circuit Judge Sidney Thomas and U.S. Circuit Judges Kim Wardlaw, William Fletcher, Richard Paez, Jay Bybee, Milan Smith, Sandra Ikuta, Eric Miller and Kenneth Lee.

The 2019 rules largely restore regulations from the Reagan administration in 1988, which were upheld in 1991 by the U.S. Supreme Court in Rust v. Sullivan. They were later suspended in 2000 when Health and Human Services required Title X grantees to provide “nondirective” abortion counseling and referrals at a patient’s request.

The government argued Monday that the new rules are not as restrictive as the ones from 1988, which banned clinics from counseling women on abortion. Regarding the 2019 rules, Deputy Assistant Attorney General Hashim Mooppan told the panel, “They can provide all the counseling they want on abortion. What they cannot do is provide a referral.”

His colleague Brinton Lucas said the Trump administration’s rule hasn’t had much of an adverse effect on Title X grantees.

“The concerns about harm have been somewhat overblown,” Lucas said, noting clinicians can still counsel patients about abortion. If it required them to do anything medically unethical, he said, “You would expect see a mass departure of providers from the program but that hasn’t happened.”

But one of the main plaintiffs challenging the rule says this isn’t true.

In an interview, Essential Access Health President and CEO Julie Rabinovitz said that prior to the regulations, 38 counties had a Title X provider. That number is now down to 20, a reduction of nearly half.

“We’ve already seen a devastating impact on our network,” she said, adding that 232 out of 363 clinic sites are no longer in the California Title X network and receiving Title X funds.

“It’s a solution to a problem that doesn’t happen to be,” Rabinovitz said. “Title X dollars have never been used for abortion services.”

Essential Access Health was founded in 1968 to provide the women of Los Angeles County with family planning and reproductive health services. It has since grown into the largest Title X network in the United States, offering annual pap smears, breast exams, contraceptives and STD screenings. Rabinovitz said for many women, it’s the only medical care they’ll get all year.

Rabinovitz added the program is audited every three years for Title X compliance, so the new regulations seem unnecessary and punitive. “We believe it’s politically motivated,” she said. “It’s politics over public health.”

Planned Parenthood also left the Title X program in August rather than comply with the new constraints.

Judge Fletcher noted these withdrawals, saying, “There has been up until now a fairly substantial departure.”

Oregon Solicitor General Benjamin Gutman also argued the Trump rule is unwarranted, and asked the judges to “keep in place regulations that have governed Title X for decades.”

Judge Smith questioned Gutman on the new rule’s restrictiveness compared to 1988 and the 2000 revision.

“In public comments the plaintiffs collectively have characterized the final rule as a gag rule with respect to abortion counseling, but the HHS said the final rule does not include the 1988 prohibition on counseling on abortion. But neither does it retain the mandate that all grantees must counsel on or refer for abortion,” he said.

Gutman said by banning abortion referrals while automatically prescribing prenatal care, the rule “slants the information being provided in favor of one option and against another option.”

Smith said he was “troubled’ by the plaintiffs’ position since the Supreme Court’s decision in Rust upheld prohibitions on abortion counseling. “Why would we be free to make a different conclusion?” Milan asked Harlow.

“We’re not saying you should disregard Rust,” Harlow said. But she said the decision was still arbitrary and capricious.

“When you’re making a reversal in your regulatory policy it needs especially good reasons,” Harlow said. “They cannot justify the 2019 rule making is not arbitrary because in 1988 it made sense. The agency’s decision-making is arbitrary when it creates a solution in search of a problem.”

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