Appeals court says Trump family planning restrictions can take effect

Donald Trump

Barring further court orders,President Donald Trump’s administration can enforce a rule finalized this spring that strips federal Title X funding from any clinic that provides abortions or abortion referrals. | Alex Wong/Getty Images

A federal appeals court this morning said the Trump administration’s family planning rules can take effect nationwide while several lawsuits play out, delivering a major blow to Planned Parenthood and states challenging the overhaul.

The 9th U.S. Circuit Court of Appeals granted the Trump administration’s request to lift national injunctions ordered by lower federal courts in Oregon and Washington state, as well as a statewide injunction in California.

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A panel of three judges, all appointed by previous Republican presidents, said the administration will likely prevail in the legal battle over the Title X family planning program since the Supreme Court held up similar Reagan-era rules almost 30 years ago, though they were reversed by the Clinton administration before taking effect.

“Absent a stay, HHS will be forced to allow taxpayer dollars to be spent in a manner that it has concluded violates the law, as well as the Government’s important policy interest in ensuring that taxpayer dollars do not go to fund or subsidize abortions,” the judges wrote in a 3-0 opinion.

Barring further court orders, the Trump administration can enforce a rule finalized this spring that strips federal Title X funding from any clinic that provides abortions or abortion referrals. The administration and anti-abortion movement have celebrated the rules for blocking tens of millions of federal dollars to Planned Parenthood, which serves a large portion of the 4 million low-income patients receiving family planning and health services through the program.

Provider groups, including the American Medical Association and the American Academy of Pediatrics, have called this a “gag rule” and warned that it will interfere with sensitive conversations between doctors and patients.

For the first time in the Title X program’s decades-long history, the new rules also allow funding to faith-based clinics opposing abortion and contraception and to promote “natural” family planning methods, including abstinence.

Nearly two dozen states, mostly led by Democrats, as well as provider and progressive advocacy groups, have filed numerous lawsuits to overturn these rules. Some states challenging the rule, including Oregon and Washington, have said they will withdraw from the Title X program if the new rules take effect, potentially forfeiting millions of dollars.

Some provisions, like the ban on abortion referrals, will take effect immediately, according to the office of California Attorney General Xavier Becerra, who is challenging the rules. Others will be implemented next year, like the requirement for grant receipients to physically and financially separate abortion services and Title X-funded offerings.

States and advocacy groups on Thursday pledged to keep fighting the rules, though their next steps weren’t immediately clear. A different panel of 9th Circuit judges is set to soon hear arguments on the merits of cases brought by states and groups, including the National Family Planning and Reproductive Health Association.

“We are prepared to take every necessary action to protect our family planning program and women’s access to healthcare in Washington state,” said a spokesperson for Washington Gov. Jay Inslee, a Democratic presidential candidate.

Justice Department spokesperson Kelly Laco said the administration is “confident we will ultimately prevail” in the legal fight, citing the 1991 Supreme Court decision upholding the Reagan-era Title X restrictions, Rust v. Sullivan.

Groups challenging the restrictions say laws passed since that Supreme Court ruling, including the Affordable Care Act in 2010, provide new patient protections bolstering their lawsuits. The ACA includes language prohibiting the government from interfering with patient-provider communications “regarding a full range of treatment options” or restricting providers’ ability to disclose “all relevant information to patients making health care decisions.” However, the 9th Circuit panel agreed with the Trump administration’s argument that those provisions, because they didn’t specifically mention abortion, should not affect how courts view theRust decision.

There are longstanding restrictions on using federal money for abortion, including in the Title X program. The Department of Health and Human Services said the new rules were necessary to prevent a “comingling” of federal funds for contraception and preventive care with separate funding for abortion. The 9th Circuit panel on Thursday said that concern was compelling enough to justify lifting the hold on the Trump rules.

A federal judge who had issued a nationwide injunction against the rules in April said HHS failed to provide evidence of “comingling” to support its concerns.

“Despite the nearly fifty-year history of Title X, they cannot point to one instance where Title X funds have been misapplied under past or current rules,” wrote U.S. District Judge Michael McShane, an Obama appointee.

Diane Foley, a senior HHS official who oversees Title X, was unable to cite specific examples of program funds being improperly used for abortion during testimony before a House committee Wednesday, drawing rebukes from Democrats.

“You’re not proceeding based on facts,” said Rep. Yvette Clarke (D-N.Y.) “You’re proceeding based on speculation.”

A statewide injunction against the Title X rules remains in place in Maryland, which stems from a lawsuit filed by the City of Baltimore. The Trump administration has asked the 4th U.S. Circuit Court of Appeals to lift the injunction.