Abortion referral rule upheld in court
SEATTLE — A U.S. appeals court on Monday upheld Trump administration rules that bar health care providers in the federal family planning program for low-income women from referring patients for abortions.
The 7-4 ruling by the 9th U.S. Circuit Court of Appeals overturned decisions issued by judges in Washington, Oregon and California. The court had already allowed the administration’s changes to begin taking effect while the government appealed those rulings.
The changes ban taxpayer-funded clinics in the Title X program from making abortion referrals, a restriction opponents characterize as a “gag rule.” They also prohibit clinics that receive federal money from sharing office space with abortion providers, which critics said would force many Title X providers to find new locations, undergo expensive remodels or shut down — reducing access to the program.
Abortion is a legal medical procedure, but federal laws prohibit the use of Title X or other taxpayer funds to pay for abortions except in cases of rape, incest, or to save the life of the woman. Under Title X, a 1970 law designed to improve access to family planning services, federal money may not be used in programs “where abortion is a method of family planning.”
Abortion rights supporters and opponents have argued over the decades whether counseling a patient about abortion or referring a patient to a different provider for an abortion violates that language. Abortion opponents and religious conservatives say Title X has long been used to indirectly subsidize abortion providers.
“Congress has long prohibited the use of Title X funds in programs where abortion is a method of family planning and (the Department of Health and Human Service’s) recent rule makes that longstanding prohibition a reality,” Justice Department spokeswoman Mollie Timmons said in a written statement celebrating the 9th Circuit’s ruling. “We look forward to continuing to defend this vital rule against all challenges.”
More than 20 states and several civil rights and health organizations challenged the rules in cases filed in Oregon, Washington and California. Judges in all three states blocked them from taking effect, with Oregon and Washington courts issuing nationwide injunctions. One judge called the new policy “madness” and said it was motivated by “an arrogant assumption that the government is better suited to direct women’s health care than their providers.”
Planned Parenthood, which served 1.6 million of the 4 million patients who received care through Title X, has already left the program over the new rules, giving up about $60 million a year in federal funding. Title X patients also receive other medical care through the program, including breast and cervical cancer screenings and HIV testing.
The administration’s new rules are a return to rules that were adopted in 1988 and subsequently upheld by the Supreme Court in the 1991 case Rust v. Sullivan. Under the Clinton administration, those rules were abandoned in favor of a requirement that the clinics provide neutral abortion counseling and referrals upon request.
The 9th Circuit’s majority opinion, by Judge Sandra Ikuta, stressed the Rust decision.
“In light of Supreme Court approval of the 1988 regulations and our broad deference to agencies’ interpretations of the statutes they are charged with implementing, plaintiffs’ legal challenges to the 2019 rule fail,” she wrote.
Further, Judge Ikuta said, the so-called gag rule is no such thing: While providers may not make a referral for an abortion, they may discuss abortion with their patients.
The dissent, by Judge Richard Paez, argued that since the Rust decision, Congress had barred the Department of Health and Human Services from imposing rules “that frustrate patients’ ability to access health care.” He called the ruling a throwback to the “paternalism of the past.”
“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,” Judge Paez wrote. “Fortunately, Congress has ensured such federal intrusion is no longer the law of the land.”
He also said the rule violates the requirement that pregnancy counseling be neutral: “By its very terms, it requires a doctor to refer a pregnant patient for prenatal care, even if she does not want to continue the pregnancy, while gagging her doctor from referring her for abortion, even if she has requested specifically such a referral,” he wrote.
The American Medical Association criticized the ruling as “government overreach and interference” that prohibits frank conversations between physicians and their patients.
“It is unconscionable that the government is telling physicians that they can treat this underserved population only if they promise not to discuss or make referrals for all treatment options,” the AMA said in a statement.