NRL News
202.626.8824
dadandrusk@aol.com

9th Circuit Upholds Trump Administration’s “Protect Life Rule”

Feb 25, 2020

By Dave Andrusko

Last June a three-judge panel of the notoriously pro-abortion 9th U.S. Circuit of Appeals nonetheless unanimously upheld the Trump Administration’s “Protect Life Rule” which required recipients of Title X family planning money not to  co-locate with abortion clinics or refer clients for abortion as a method of family planning. 

Predictably, Planned Parenthood opted out of the Title X program rather than accept the limitations which were clearly intended by Congress when it created the program in 1970.

Yesterday the full 9th Circuit (“en blanc”) upheld the panel’s decision. The 7-4 decision in California v. Azar) vacated court decisions in California, Oregon, and Washington that had blocked the rule’s enforcement and sent the cases back to the trial courts for further action.

“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 Department of Justice spokesperson, said in a statement. “We look forward to continuing to defend this vital rule against all challenges.”

Ed Whelan, in a very helpful post that ran yesterday afternoon, nicely summarized the court’s holding:

In her majority opinion, Judge Ikuta explains that the Title X regulations are similar to those upheld by the Supreme Court in Rust v. Sullivan in 1991, and that they are in fact “less restrictive in at least one important respect: a counselor providing nondirective pregnancy counseling ‘may discuss abortion’ so long as ‘the counselor neither refers for, nor encourages, abortion.’” There therefore “is no ‘gag’ on abortion counseling” (even if one were to adopt the dubious position that a refusal to provide funding amounts to a “gag”).

Ikuta rejects arguments that two intervening congressional enactments render Rust’s holding no longer valid (pp. 32-48) and that the regulations are inconsistent with a provision in the so-called Affordable Care Act (pp. 49-58). She also rejects administrative-law claims that the Title X regulations are in various respects arbitrary and capricious (pp. 59-81).

Unfortunately, the decision too often also meant biased and one-sided news accounts. Take Reuters Jonathan Stempel, whose account ran under the headline, “Trump ‘gag rule’ on abortion referral can be enforced, U.S. appeals court rules.”

Here’s his first sentence: “A sharply divided federal appeals court on Monday said the Trump administration may enforce a rule labeled by critics as a ‘gag rule that could deprive abortion providers of federal funding for family planning.”

This is wrong on multiple accounts.  As Judge Sandra S. Ikuta made clear very early in her majority opinion, there is “no gag.” Pregnancy counselors just can’t refer or encourage abortion.

If abortion providers are “deprived,” it is a decision of their own making. Federal funding for family planning was not—as we have written many times, not—cut. It now goes to genuine family planning.

What’s next for litigants is uncertain.

“[California Attorney General Xavier] 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,” Bloomberg Law reported. “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.”

Categories: Judicial
Tags: