Trump Agency Can Enforce Abortion ‘Gag’ Rule: Ninth Circuit (1)

The Trump administration can now implement a hotly contested rule that bans federally funded health-care providers from counseling patients about abortion services.

In an unsigned opinion first reported by Bloomberg Law, the U.S. Court of Appeals for the Ninth Circuit on June 20 granted the Health and Human Services Department’s request to temporarily block preliminary injunctions that federal district courts in California, Oregon, and Washington had issued to stop the rule from taking effect.

The appeals court said the rule can be implemented while the government appeals those lower court orders.

The decision marks a rare victory for the Trump administration in a court the president has repeatedly criticized as being too liberal.

The White House declined to comment on the court’s order, but the Department of Justice, which represented the HHS in the case, said it was pleased with the court’s decision.

“The Department of Justice’s position is supported by long-standing Supreme Court precedent and we are confident we will ultimately prevail on appeal,” the DOJ said.

All three of the panel’s judges—Edward Leavy, Consuelo M. Callahan, and Carlos T. Bea—were appointed by Republican presidents. The judges said the HHS is likely to prevail on the merits of its appeals over the injunctions and therefore the agency may enforce the rule pending the appeals’ outcome.

The HHS and the public will be irreparably harmed if the agency is unable to immediately enforce the rule, the court said.

The department would be “forced to allow taxpayer dollars to be spent in a manner that it has concluded violates” both the law and its policy against subsidizing abortions, the court said. Uncertainty in the Title X family planning program also will result, it said.

‘Horrible Impact’

But Planned Parenthood Federation of America said the Ninth Circuit got it wrong.

“The court improperly discounted the horrible impact that this rule will have on a population of low-income people who need access to family planning services the most,” a Planned Parenthood attorney said, adding there’s no way the government will suffer more than patients.

“The program has operated with these rules for really the whole history of the program,” the attorney said. “There can be no harm to the government if those rules remain in effect while the court considers the merits of the government’s appeals.”

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The injunctions issued by federal district courts in Oregon and Washington state had stopped the agency from enforcing the new restrictions nationwide on those who receive federal funding for family planning care and counseling under Title X of the Public Health Service Act. The injunction from the federal district court in California had only protected providers in that state.

The administration, however, is still blocked from implementing the rule in Maryland, where a preliminary injunction from a federal district court there is still in place, the Planned Parenthood attorney said. That preliminary injunction is limited to Maryland and is not affected by the Ninth Circuit’s stay.

The rule, which can now take effect everywhere but Maryland, prohibits a Title X grant recipient from performing, promoting, referring for, or supporting abortion as a method of family planning.

It also requires physical separation of abortion and all other services offered by grantees.

Reasonable Interpretation

Congress created Title X in 1970. In Section 1008, it provided that none of the taxpayer money distributed to grantees could be used in programs where abortion was a method of family planning.

The HHS’s 2019 rule was a reasonable interpretation of that section, the Ninth Circuit said. Rust v. Sullivan, a 1991 case in which the U.S. Supreme Court upheld a substantially similar regulation, foreclosed the argument that it wasn’t, the court said.

Neither an appropriations rider requiring only “nondirective counseling” nor the Affordable Care Act’s Section 1554—both adopted after Rust—repealed or amended Section 1008, the court said. Section 1554 prohibits the government from creating unreasonable barriers to health care access, interfering with physician-patient communications, and violating informed consent principles.

The HHS also was likely to win its argument that it validly enacted the rule under the Administrative Procedure Act, the Ninth Circuit said.

California Attorney General Xavier Becerra said his office is still reviewing the ruling.

“Staying the preliminary injunction we secured in district court risks access to critical reproductive healthcare for millions of Americans,” he said in a statement. “This ruling allows the Trump-Pence Administration to prohibit doctors and other medical providers from giving factual, unbiased information to patients.”

The California Attorney General’s Office represents California. The New York Attorney General’s Office , which is lead counsel for multiple states, could not immediately be reached for comment. The Washington Attorney General’s Office, which represents Washington state, did not respond to a request for comment.

Keker Van Nest & Peters LLP, Wilmer Cutler Pickering Hale & Dorr LLP, Stoel Rives LLP, the American Medical Association, Planned Parenthood Federation of America, the American Civil Liberties Union Foundation, and O’Melveny & Myers LLP represent the grantees.

The case is California v. Azar, 2019 BL 226741, 9th Cir., Nos. 19-15974, 19-15979, 19-35386, 19-35394, 6/20/19.