The Ninth Circuit Court of Appeals on Thursday ruled the Trump administration’s domestic “gag rule,” which bans federal family planning dollars from going to health-care providers who perform abortions or refer patients for abortion services, can take effect everywhere but the state of Maryland.
The ruling jeopardizes comprehensive reproductive health-care access for nearly 4 million people.
“This is devastating news for the millions of people who rely on Title X for cancer screenings, HIV tests, affordable birth control, and other critical primary and preventive care,” Dr. Leana Wen, Planned Parenthood Federation of America’s president and CEO, said in a statement following the ruling. “While we are incredibly concerned the panel did not recognize the harm of the Trump-Pence administration’s gag rule, we will not stop fighting for the millions across the country in need for care. Planned Parenthood will keep fighting to block this dangerous rule that allows the government to censor our doctors and nurses from doing their jobs.”
Four district court judges had previously blocked the rule, with two judges blocking it nationwide. On June 20, a three-judge panel from the Ninth Circuit granted the request from the Trump administration to stay the preliminary injunctions in California, Oregon, and Washington, which allowed the gag rule to be enforced. The order came after reproductive rights advocates asked the full bench of Ninth Circuit judges to reconsider the panel ruling.
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The Trump administration’s changes to the Title X program also mandate a new “physical and financial separation” between a Title X-funded program and a facility that engages in “abortion activities.” This 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 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.
The impact of Trump’s domestic gag rule will be catastrophic. Approximately two-thirds of the patients who rely on Title X clinics live in poverty. Title X clinics are the main source of medical care for the six in ten women who receive their care there. About one-third of Title X patients are Latinx and approximately 22 percent are Black, meaning a disproportionate number of Title X patients are people of color. Title X clinics will now face dramatic cuts in funding if they don’t abandon abortion care or referrals, meaning that patients like these will have even fewer resources.
First proposed in May 2018, the administration’s changes had been blocked by the courts from taking effect while lawsuits challenging them proceeded. Thursday’s order, however, allows those changes to take effect immediately, except for the separation requirements: Title X grantees have until March 4, 2020, to comply with those requirements.
In June, the House of Representatives passed a spending package including language blocking the administration’s gag rule from being implemented, but without action from the Republican-controlled Senate, those protections will go nowhere. Advocates could also file an emergency request with the U.S. Supreme Court to reinstate the injunctions while the lawsuits challenging the administration’s gag rule proceeds. But absent something extraordinary happening, it looks as though for now Republicans have succeeded, even temporarily, in gutting the Title X program.