Federal appeals court allows abortion-referral restriction to go into effect

A block on clinics in the federally funded Title X family planning program from referring patients to abortion providers will take effect as challenges play out in the lower courts, a federal appeals court ruled on Monday in a win for the Trump administration.

Lower courts have consistently opposed the Department of Health and Human Services’ desire to block referrals, and reproductive rights groups have pushed back against the so-called “gag rule,” arguing that it has already harmed low-income women. The rule was challenged in federal courts in California, Oregon and Washington state last year, all of which blocked it. But the 9th US Circuit Court of Appeals ruled Monday that HHS is within its rights to modify the program.

“The Final Rule is not arbitrary and capricious because HHS properly examined the relevant considerations and gave reasonable explanations,” the court ruled.

But Circuit Judge Richard Paez wrote a fiery counterpoint to the ruling, citing the district judges’ rulings in a dissent joined by three of the other 9th Circuit judges.

“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. “Women and their families will suffer for it. I strongly dissent.”

The appeals court has repeatedly given the rule the green light, upholding it in June, July and August. Planned Parenthood, a key provider that covered 40% of the Title X program’s participants, opted to withdraw from the program after the 9th Circuit ruled last August that the regulations could go into effect.

Under current law, Title X funds already may not be used to pay for abortions, but the new rule would require health care providers in the program not to refer their patients for abortions elsewhere. Some studies have found the impacts of the rule and Planned Parenthood’s subsequent departure to have been stark.

About 900 clinics have dropped out of the program, according to a report by the reproductive rights group Power to Decide, citing instances of more limited and expensive services. Additionally, after HHS opted to reassign the relinquished Title X funds to remaining participants, a report by the nonpartisan Kaiser Family Foundation found gaps in the new coverage.

Reproductive rights supporters said Monday’s ruling is an obstacle to patients seeking care and health care providers looking to do their jobs.

Alexis McGill Johnson, acting president and CEO of Planned Parenthood Federation of America, slammed the rule as “causing immense harm across the country” and creating “egregious barriers for people with low incomes to get birth control and preventive care like STI testing, education, and cancer screenings.”

Dr. Patrice Harris, president of the American Medical Association, said in a statement that the group is “disappointed by — and strongly disagrees with — the reasoning behind” the decision.

“This government overreach and interference demands that physicians violate their ethical obligations — prohibiting open, frank conversations with patients about all their health care options — if they want to continue treating patients under the Title X program,” she added. “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 White House on Tuesday applauded the decision, saying in a statement that the rule “protects the unborn by ensuring Title X grants are allocated as Congress intended — and not as abortion providers or abortion advocacy organizations would prefer.”

“By law, Title X prohibits grant funds from going to programs where abortion is considered a method of family planning,” the statement continues. “This ruling upholds the Title X regulation that will ensure compliance with that law.”

Mia Palmieri Heck, director of external affairs at HHS’ Office of the Assistant Secretary for Health, told CNN that HHS does not comment on ongoing or pending litigation.

Justice Department spokesperson Mollie Timmons said in a statement Monday that “we are pleased” by the court’s decision.

“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,” she added. “We look forward to continuing to defend this vital rule against all challenges.”

This story has been updated to add a statement Tuesday from the White House.