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Good news. Full 9th Circuit refuses to review its decision upholding Trump Administration’s “Protect Life Rule”

by | May 11, 2020

By Dave Andrusko

When an 11-member panel of the 9th U.S. Circuit Court of Appeals affirmed a three-judge panel’s decision upholding the Trump Administration’s “Protect Life Rule,” the state of California asked the Court to rehear its en banc decision. The decision had vacated court decisions entered in California, Oregon, and Washington which blocked enforcement of the rule.

Last Friday, the 9th Circuit refused to reconsider its 7-4 decision to uphold, according to the Court House News Service. The judges simply announced  that  the Court “has voted to deny the Petition of Plaintiffs-Appellees.”

Derided as a “gag rule,” the Trump Administration’s Protect Life Rule did nothing more than require recipients of Title X family planning money not to refer clients for abortion as a method of family planning or co-locate with abortion clinics. 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.

At the time of the February 24 en blanc decision, Mollie Timmons, a Department of Justice spokesperson, said, “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.”

Ed Whelan, in a very helpful post, nicely summarized the 9th Circuit’s holding in California v. Azar):

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Ikuta rejects arguments that two intervening congressional enactments render Rust’s holding no longer valid (pp. 32-48) and that the regulations are inconsistent with a provision in the so-called Affordable Care Act (pp. 49-58).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).

Categories: Judicial