Analysis Law and Policy

What’s Next in the Continuing Mess of the Domestic ‘Gag Rule’ Fight (Updated)

Jessica Mason Pieklo

Once again, the fate of low-income people's access to comprehensive reproductive health care will be determined by the federal courts.

UPDATE, July 11, 1:44 p.m.: The Ninth Circuit Court of Appeals on Thursday declined to block the domestic “gag rule” from taking effect.

UPDATE, July 3, 6:32 p.m.: The full Ninth Circuit Court of Appeals on Wednesday reinstated the nationwide injunction on the “gag rule.”

Reproductive rights and health advocates on Monday filed an emergency petition to the full Ninth Circuit Court of Appeals, asking it to reverse a ruling last week setting aside preliminary injunctions blocking the Trump administration’s domestic “gag rule” from taking effect. 

The request is advocates’ latest attempt to prevent the administration from enforcing the rule, which bans federal family planning dollars from going to health-care providers who perform abortions or refer patients for abortion services and was originally set to take effect on May 3. Last week, a three-judge panel from the Ninth Circuit ruled that the Trump administration could begin enforcing the policy while the case makes its way through the courts.

Get the facts, direct to your inbox.

Want more Rewire.News? Get the facts, direct to your inbox.

SIGN UP

On Friday, attorneys from the Center for Reproductive Rights filed a separate emergency request with a federal court in Maine to block the gag rule as well. The court has not yet ruled on that request. A separate injunction remains in place for Title X grantees in Maryland. 

First proposed in May 2018, the changes to the Title X program mandate a new “physical and financial separation” between a Title X-funded program and a facility that engages in “abortion activities.” The regulations specify such a separation must include separate waiting, consultation, examination, and treatment rooms, as well as office entrances and exits. Title X grantees would have to provide different phone numbers and email addresses for those staff members and facilities involved in abortion services.

These separation requirements don’t only apply to the small number of Title X providers that actually offer abortion care. They also apply to all Title X-funded projects that give referrals to patients who wish to obtain an abortion, as well as any that engage in separately funded advocacy or public education activities that “promote” abortion as determined by the Trump administration. To obtain Title X funding, providers would have to open and operate an entirely independent facility to merely provide a referral for abortion care. Title X grantees have until March 4, 2020, to comply with these separation requirements.

Advocates estimate nearly 4 million people will have their health-care access adversely affected should the Trump administration begin enforcing the gag rule.

“All Title X providers will be faced with two bad choices: withhold critical information and limit care to patients or leave the program and be less able or unable to care for poor and low-income people in their community,” Clare Coleman, president and CEO of the National Family Planning & Reproductive Health Association (NFPRHA), one of the plaintiffs challenging the Trump administration’s Title X changes, said in a statement announcing the emergency filing with the Ninth Circuit Court of Appeals. 

“Under the rule, Title X providers will not be allowed to refer patients for abortion care, nor are they obligated to provide medically approved contraceptive methods and services,” Coleman said. “All providers in the program will be forced to encourage family participation for minors in a health visit, eroding the program’s confidentiality guarantee for patients.”

Last week, Trump administration officials defended changes to the program to members of Congress. Diane Foley, deputy assistant secretary for population affairs at the U.S. Department of Health and Human Services (HHS), claimed the policy was not a “gag rule” because patients can be referred for abortions in cases of rape, incest, and life endangerment. All the while, she reiterated that the rule banned Title X-funded providers from giving information about abortion as a form of family planning.

Foley’s statements track the logic and holding of the 1991 U.S. Supreme Court decision Rust v. Sullivan, a case that upheld nearly identical changes to the Title X program. The HHS under President Ronald Reagan issued rules in 1988 that prohibited Title X recipients from “engaging in counseling concerning, referrals for, and activities advocating abortion as a method of family planning,” Like the Trump administration’s proposed changes, the Reagan rules also required grantees to maintain “an objective integrity and independence from the prohibited abortion activities by the use of separate facilities, personnel, and accounting records.” 

Reproductive rights advocates sued to block the rules before they could take effect but ultimately lost, thanks in large part to the advocacy efforts of now-Chief Justice John Roberts as an attorney in the George H.W. Bush administration. In a 5-4 decision, the Supreme Court affirmed and upheld the changes, holding HHS was reasonable in issuing the rules. But subsequent legal challenges kept them tied up in court before President Bill Clinton rescinded them in 1993, only to have Republicans resuscitate them once they took power following the 2016 presidential election.

Once again, the fate of the Title X program appears to be up to the federal courts, and once again, the impact of the fight will land hardest on the most vulnerable. Nearly 4,000 facilities nationwide receive Title X funding; approximately 39 percent of Title X patients are under the age of 25, according to reproductive health-care advocates. Meanwhile, some Planned Parenthood reproductive health-care centers affected by the gag rule have already begun operating on reserve funds while the courts sort out the funding fight.

The Trump administration is set to respond to the Maine request on Tuesday, and the Ninth Circuit could act this week on NFPRHA’s request to reinstate the nationwide injunctions while the lawsuits challenging the Trump administration’s changes proceed.

Load More