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Analysis Law and Policy

Ninth Circuit to Hear Arguments on Trump’s Domestic ‘Gag Rule’

Imani Gandy

The court could rule in the administration’s favor based on a 1991 U.S. Supreme Court decision that upheld nearly identical changes to the Title X program.

The U.S. Court of Appeals for the Ninth Circuit will hear arguments Monday regarding an order that allowed the Trump administration’s domestic “gag rule” to take effect. The arguments come in several cases filed in California, Oregon, and Washington, challenging the administration’s changes to Title X, the federal family planning program that provides low-income patients with access to reproductive health-care services. The Ninth Circuit, an appeals court representing each of those states, will hear the cases together.

Trump’s gag rule bans federal family planning dollars from going to health-care providers who perform abortions or refer patients for abortion services. It contains onerous requirements, such as a mandate for separate entrances, if those providers engage in “abortion activities.”

On July 11, the Ninth Circuit ruled that the gag rule could take effect. The ruling followed a three-judge panel on the court granting the Trump administration’s request to stay or pause the nationwide injunctions issued in the cases out of California, Oregon, and Washington. Before that June 20 order, four district court judges had blocked the rule from taking effect, including one in Maryland that issued an order pertaining to that state.

Domestic gag rule is a shorthand term for the sweeping changes to the Title X program that the Trump administration proposed in May 2018 and finalized early this year. The gag rule not only bans Title X providers from referring pregnant patients to a non-Title X provider for an abortion—even in response to the patient’s direct request—it also requires providers to refer every pregnant patient for prenatal care, even if the patient has clearly stated their decision to obtain an abortion.

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The rule also mandates “physical and financial separation” between a Title X program and a facility that engages in “abortion activities.” The regulations specify that this physical and financial separation must include separate waiting, consultation, examination, and treatment rooms, as well as separate office entrances and exits. Title X grantees would also have to provide different phone numbers and email addresses for those involved in abortion services. The deadline for compliance with the physical separation requirement is March 4, 2020.

These separation requirements apply not only to the small number of Title X providers that offer abortion services but also to all Title X-funded projects that give referrals for abortion, as well Title X projects that engage in separately funded advocacy or public education activities that the Trump administration determines “promotes” abortion.

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 states challenging the law argue that these changes to the Title X program undermine clinically established standards of care, interfere with the patient-provider relationship, and contradict a core purpose of the Title X program. They contend that the changes run afoul of the Administrative Procedure Act (APA), the federal law that governs how agencies issue regulations and prohibits arbitrary and capricious decision making of the sort the plaintiff states allege happened here.

The plaintiff states’ argument is threefold: First, they argue that the new rule violates a 1996 congressional mandate that all pregnancy counseling be nondirective, meaning that Title X counseling may not direct patients toward or away from any option, be it abortion or childbirth. The new rule forces Title X providers to steer patients toward prenatal care and prohibits them from making a referral for abortion.

Second, the states argue that the rule violates Section 1554 of the Affordable Care Act, which prohibits the U.S. Department of Health and Human Services (HHS) from promulgating any regulation that, among other things, interferes with provider-patient communications; impedes timely access to health-care services; or violates health-care professionals’ ethical standards of care. By prohibiting providers from speaking to their patients about abortion, the rule requires providers to violate their ethical obligations to patients by withholding relevant information and ignoring their patients’ decisions, according to court documents.

Indeed, as evidenced by Planned Parenthood’s announcement in August to withdraw from the Title X program, many providers have said they would be faced with a Hobson’s choice: They could either compromise the quality of care that they provide or drop out of the program, leaving their low-income patients with nowhere else to go. (HHS argues that new providers will fill any gaps left by departing providers, but offered no evidence to support its claim.)

And finally, the states claim that the new rule violates the APA’s prohibition on arbitrary and capricious agency decision-making, which is decision-making without any justifiable reason. For example, HHS imposed the new physical separation requirements even though, as California Attorney General Xavier Becerra has noted, “HHS cannot cite a single instance from the past three decades—during which shared facilities have been permitted, under certain conditions—in which a Title X provider has misused funds to support abortion.” The lower court in the case brought by Becerra agreed and issued an injunction blocking the gag rule from taking effect.

The Trump administration appealed the injunctions to the Ninth Circuit and sought a stay pending its appeal seeking to overturn the injunctions. The Ninth Circuit issued that stay. After Monday’s arguments, the court could lift the injunction and rule in the administration’s favor based on a 1991 U.S. Supreme Court decision, Rust v. Sullivan, which upheld nearly identical changes to the Title X program.

In 1988, the HHS under President Ronald Reagan issued rules 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 gag rule, 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.”

Several Title X grantees and doctors who supervised Title X funds filed lawsuits challenging the rules, arguing that the changes were unconstitutional and conflicted with Title X itself. Both the lower court and the court of appeals rejected those claims. And in a 5-4 decision, the Supreme Court in Rust affirmed and upheld the changes—thanks in no small part to the advocacy efforts of now-Chief Justice John Roberts, who was an attorney in the George H.W. Bush administration. The Court ruled that the Title X changes were a reasonable exercise of HHS’s decision-making power. But the 1988 rules never went into effect because legal challenges kept them tied up in court through the duration of Bush’s tenure, and President Bill Clinton rescinded the rules in 1993.

In their case, the plaintiff states argue that the Title X landscape is different in 2019 than it was in 1988 because HHS is subject to additional requirements: the 1996 mandate that all pregnancy counseling be nondirective and the Affordable Care Act provision barring interference in patient-provider communications.

The Trump administration, however, argues that these additional requirements do not change the Supreme Court’s ruling in Rust, and that a three-judge panel of the Ninth Circuit agreed with them when it stayed the lower court orders blocking the injunction.

Whether the Ninth Circuit sitting en banc will reach a different conclusion remains to be seen. Either way, this litigation will likely wind up at the Supreme Court, which will probably grant Republicans’ request to gut Title X. As Rewire.News Vice President of Law and the Courts Jessica Mason Pieklo has written, “[I]t’s also undeniable that the Roberts Court is more conservative than its predecessor that upheld similar restrictions in Rust. There’s every reason the Court would vote to uphold Trump’s changes as well. Should that happen, then the only remedy—as in Rust—would be to elect lawmakers to Congress and the presidency who would, again, undo these restrictions.”

The Court is not expected to rule for several weeks.

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