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Trump HHS Can Enforce Abortion Gag Rule, Ninth Circuit Says (2)

Feb. 24, 2020, 5:22 PMUpdated: Feb. 24, 2020, 8:37 PM

The Trump Administration will be allowed to restrict what taxpayer-funded family planning clinics can tell clients about abortion, the Ninth Circuit said Monday.

The appeals court vacated orders entered by federal courts in California, Oregon, and Washington blocking the rule’s enforcement, saying its challengers “will not succeed” on the merits.

The court sent the cases back to the trial courts for further proceedings.

It was a devastating blow to family planning providers, health-care organizations, and the multiple cities and states that spent months fighting the rule in court.

“The Gag Rule interferes with healthcare decisions that should remain between women and their healthcare providers,” California Attorney General Xavier Becerra (D) said in a statement. “This reckless rule is just another attempt by the Trump-Pence Administration to roll back women’s access to reproductive health care.”

Title X is the only program that provides federal funds to family planning services providers. The Trump administration’s new rule implementing the program states that grantees may not perform, promote, refer for, or support abortion as a method of family planning. It also requires clinics that provide both family planning services and abortion services to physically and financially separate the two.

Multiple states, cities, and private family planning services providers challenged the rule.

“More than 30 states have lost part or all of their Title X provider network due to this rule, and there are nearly 1,000 fewer sites in which patients can receive Title X services,” Clare Coleman, president and CEO of the National Family Planning & Reproductive Health Association, said in a statement. “Today’s decision will ultimately result in more losses to Title X care.”

“Before it was forced out by the rule, Planned Parenthood served 40 percent of patients in the federal family planning program each year,” Alexis McGill Johnson, acting president and CEO of PPFA, said in a statement before listing Hawaii, Oregon, Maine, Utah, Vermont, and Washington. “This leaves more than half of patients who rely on Title X funding without the provider they had been turning to for Title X care.”

Title X health centers are one of the few places in low-income and rural communities where people can access affordable reproductive health-care services, birth control and preventative care like STI testing, education, and cancer screenings, Planned Parenthood Federation of America said.

Trial courts initially blocked the Health and Human Services Department from enforcing it, but a three-judge appeals court panel allowed it to go into effect last year. The Ninth Circuit granted en banc review.

The court considered and rejected all the challengers’ reasons for declaring the rule invalid. It began by rejecting the argument that the rule in any way “gags” providers from discussing abortion. Providers “‘may discuss abortion’ so long as ‘the counselor neither refers for, nor encourages, abortion,’” the court noted.

Because there is a distinction between counseling about abortion and referring abortion to clients as a method of birth control, and HHS reasonably interpreted “nondirective pregnancy counseling” as not including referrals, the rule didn’t violate the nondirective mandate of a 1996 appropriations rider for Title X programs, the court said.

HHS also reasonably interpreted “nondirective” to mean counselors must “present options in a neutral manner and refrain from encouraging the client to select a particular option,” the court said.

The rule isn’t inconsistent with the Affordable Care Act’s prohibition on regulations that create barriers to access health care, the court also said. The rule merely reflects Congress’s choice not to subsidize certain activities. It doesn’t interfere with a person’s ability to obtain appropriate care or a medical professional’s ability to provide it, the court said.

HHS didn’t act arbitrarily or capriciously in adopting the rule, the court added. The agency examined the relevant considerations and analyzed its options in a reasonable fashion, it said.

Becerra and multiple groups, including NFPRHA, the American Medical Association, and the PPFA vowed to continue fighting, but it’s unclear if any legal path forward for an appeal exists.

NFPRHA and Becerra’s office said they were still reviewing the court’s decision when asked if they planned to seek the U.S. Supreme Court review.

The Department of Justice, which represented HHS, said it is pleased with the court’s decision.

“Congress has long prohibited the use of Title X funds in programs where abortion is a method of family planning and HHS’s recent rule makes that longstanding prohibition a reality,” Mollie Timmons, a DOJ spokesperson, said in a statement. “We look forward to continuing to defend this vital rule against all challenges.”

Judge Sandra S. Ikuta wrote the opinion, which was joined by Judges Edward Leavy, Jay S. Bybee, Consuelo M. Callahan, Milan D. Smith Jr., Eric D. Miller, and Kenneth K. Lee.

Judge Richard A. Paez dissented, joined by Chief Judge Sidney R. Thomas and Judges Kim M. Wardlaw and William A. Fletcher.

With this decision, the majority “sanctions the agency’s gross overreach and puts its own policy preferences before the law,” Paez wrote.

The California Attorney General’s Office; Keker, Van Nest & Peters LLP; the Oregon Department of Justice; the Attorney General’s Offices of New York, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, Pennsylvania, Rhode Island, Vermont, Virginia, and Wisconsin; Stoel Rives LLP; the Planned Parenthood Federation of America; Wilmer Cutler Pickering & Hale Dorr LLP; the Washington Attorney General’s Office; MacDonald Hoague & Bayless; the American Civil Liberties Union Foundation; the ACLU of Washington; and O’Melveny & Myers LLP represented the challengers.

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 case is California v. Azar, 9th Cir., No. 19-15974, 2/24/20.

(Updated throughout with additional reporting.)

To contact the reporters on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com; Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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