Federal appeals court allows abortion-referral restriction to proceed

Posted at 7:20 PM, Jul 11, 2019
and last updated 2019-07-11 21:20:00-04

Eleven 9th US Circuit Court of Appeals judges on Thursday upheld the court’s prior ruling to temporarily allow regulations to go into effect prohibiting taxpayer-funded family planning clinics from discussing abortion with patients or referring patients to abortion providers.

Last month, a panel of three Republican-appointed judges in the San Francisco-based court said the so-called abortion gag rule from the Department of Health and Human Services could go into effect pending the outcome of an appeal of three lower court rulings blocking the changes to Title X.

The challengers to the administration — which include more than 20 states, Planned Parenthood and the American Medical Association — filed for an en banc court featuring 11 of the court’s judges to rehear the case last month.

The en banc court ruled 7-4 on Thursday to maintain the three-judge panel’s order while rehearing the parties’ arguments on the district court’s temporary block of the rule.

“The order granting reconsideration en banc did not vacate the stay order itself, so it remains in effect,” the judges wrote, later adding that “the en banc court will proceed expeditiously to rehear and reconsider the merits of the Appellants’ motions for stay of the district courts’ preliminary injunction orders pending consideration of the appeals on the merits.”

Planned Parenthood Federation of America President Leana Wen called Thursday’s ruling “devastating news for the millions of people who rely on Title X” for a slew of reproductive health services.

“While we are incredibly concerned the panel did not recognize the harm of the Trump-Pence administration’s gag rule, we will not stop fighting for the millions across the country in need for care,” Wen added in a statement.

The Title X program serves about 4 million people a year, according to HHS. Critics say the regulations would mostly affect communities of color, low-income people, the uninsured and rural residents.

A federal judge in Oregon had blocked the rule in April, which had been set to take effect in early May.

US District Judge Michael J. McShane called the federal restriction “a ham-fisted approach to health policy” and said it “prevents doctors from behaving like informed professionals.”

But the 9th Circuit three-judge panel sided with HHS in June, writing in a 25-page opinion that “to find that the Final Rule’s enactment was arbitrary and capricious, the district courts generally ignored HHS’s explanations, reasoning, and predictions whenever they disagreed with the policy conclusions that flowed therefrom.”

“Title X is a limited grant program focused on providing pre-pregnancy family planning services — it does not fund medical care for pregnant women,” the opinion adds. “The Final Rule can reasonably be viewed as a choice to subsidize certain medical services and not others.”