‘Devastating’: Ninth Circuit Court Greenlights Trump’s ‘Gag Rule’

In a scathing dissent, a Ninth Circuit judge accused the majority of kowtowing to the Trump administration and erasing decades of progress in family planning.

[Photo: President Donald Trump speaks during an event.]
A ruling against a part of the Trump administration’s domestic “gag rule” would avert additional clinic closures that pro-choice advocates say disproportionately harms people of color and those with low incomes. Mark Wilson / Getty Images

The Ninth Circuit Court of Appeals on Monday overturned a block on the Trump administration’s domestic “gag rule,” which has cut off people with low incomes from affordable family planning services.

A Ninth Circuit judge called the 7-3 decision “paternalistic” and partisan. Every judge to rule in favor of unblocking the rule was appointed by a Republican president, Reuters reported.

In overturning preliminary injunctions issued last year by judges in California, Oregon, and Washington, the Ninth Circuit majority said it was bound by “broad deference” to the U.S. Department of Health and Human Services (HHS)—which crafted the anti-choice rule—and that the agency’s decision-making was not arbitrary and capricious under the Administrative Procedure Act (APA).

The decision comes as U.S. District Judge Edward Chen in San Francisco hinted in court last Thursday that he might stop part of the rule from taking effect on March 4 requiring health-care providers receiving federal funding under the Title X program to provide abortion services and family planning services in separate facilities.

A ruling against a part of the Trump administration’s domestic gag rule would have averted additional clinic closures that disproportionately harm people of color and those with low incomes.

The Title X gag rule, announced by HHS last March, bans health-care providers receiving Title X family planning funding from performing abortions or referring patients for abortion services, even if a patient wants abortion care. The plaintiffs argue the rule violates a 1996 congressional mandate of “nondirective” pregnancy counseling and referrals for abortion services if a patient requests them.

The rule also requires clinics to physically and financially separate abortion services and family planning services, which means providers must either open expensive new clinics or forgo federal family planning funding in order to continue providing even referrals for abortion care. Meanwhile, Trump’s HHS has given Title X funding to anti-choice clinics that don’t offer a full range of reproductive health services.

Though the restrictions on abortion counseling and referrals became effective last year, the physical and financial separation requirements won’t go into effect until March 4.

Last September, the plaintiffs argued to the Ninth Circuit that the physical separation requirement was arbitrary and capricious because HHS failed to show an adequate need for it and ignored public comments that it would result in clinic closures.

The majority rejected that argument Monday, holding HHS had “provided a reasoned analysis” for the provision. It accepted HHS arguments that commenters on the anti-choice rule seemed unaware that Title X funds can’t be used for abortion care, holding that HHS could reasonably conclude that the physical separation requirements “could help minimize the appearance that the government is funding abortion as a method of family planning.”

In court last Thursday, Chen said there was “nothing in the record at this point that justifies that perception.”

In a scathing dissent Monday, Ninth Circuit Judge Richard Paez accused the majority of kowtowing to the Trump administration.

“In vacating the district courts’ preliminary injunctions, the majority sanctions the agency’s gross overreach and puts its own policy preferences before the law,” Paez wrote.

Ninth Circuit Judges Kim McLane Wardlaw and William Fletcher, along with Chief Judge Sidney Thomas, joined the dissent. “The majority would return us to an older world, one in which a government bureaucrat could restrict a medical professional from informing a patient of the full range of health care options available to her.”

In court last Thursday, Chen said he was inclined to overturn the physical and financial separation regulation, eliminating the March 4 compliance deadline while allowing the current gag rule requirements to remain in force. With the injunctions now vacated, Chen is obligated to uphold the rule.

In a statement Monday, Essential Access Health President and CEO Julie Rabinovitz said the organization was discussing next steps with its attorneys. “This is a devastating decision for the millions of low-income patients who rely on the Title X program for comprehensive, quality sexual and reproductive health care nationwide,” Rabinovitz said.

California’s Title X program serves a million patients annually—over 25 percent of Title X recipients nationwide. The program helped people avoid an estimated 822,000 unplanned pregnancies in 2015 alone, which would have resulted in 387,000 unplanned births and 278,000 abortions, according to lawsuits filed by the state of California and Essential Access Health, which has been part of the family planning program since its establishment in 1970 and serves 650,000 people annually. The state program substantiall  reduced unintended pregnancies among teenagers and the transmission of sexually transmitted infections (STIs) like gonorrhea and chlamydia.

California Attorney General Xavier Becerra (D) in a Monday statement called Monday’s ruling on the gag rule “troubling.”

“Leaving women in the dark about their healthcare and restricting doctors from providing candid advice is simply not in the best interest of public health. In California, we will continue to fight for comprehensive reproductive healthcare, including safe and legal abortion,” Becerra said.

California and Essential Access, the largest Title X provider network in the United States, sued for a preliminary injunction blocking the gag rule when it was announced last March, predicting it would drive providers out of the federal program or force them to shutter altogether.

Chen granted the injunction a month later but limited it to California, holding the rule would harm patients and public health by delaying or foreclosing the option to have an abortion, and by decreasing access to birth control and to STI and reproductive cancer screenings. Federal judges in Oregon and Washington granted injunctions on similar grounds. But a motions panel of the Ninth Circuit Court of Appeals permitted the rule to take effect in June by staying the injunctions.

To be eligible for Title X services in California, people must earn between 200 percent and 250 percent of the federal poverty level (in 2018, that worked out to $24,280 and $30,350, respectively). Since the rule took effect last March, 149 Title X clinics have withdrawn from Essential Health’s network, a reduction of 40 percent. The clinics serve 375,000 fewer patients, disproportionately impacting rural areas and communities of color, according to Essential Access.

California’s statewide Title X network could shrink even further if the Trump administration’s physical and financial separation requirements become effective next month, the group says.

“It is our goal to fight this until the end,” Rabinovitz told Rewire.News last week.

Correction: This story has been updated with the correct name of Ninth Circuit Court Judge Richard Paez.