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Administration Argues the Domestic ‘Gag Rule’ Isn’t a Gag Rule at Ninth Circuit Hearing

Imani Gandy

Deputy Assistant Attorney General Hashim Mooppan argued at Monday's hearing that referrals for abortion are permitted under Trump's Title X rule if medically necessary. The purpose of the law, Mooppan said, is to ensure that abortion does not become a method of family planning.

The Ninth Circuit Court of Appeals heard oral arguments on Monday regarding the Trump administration’s domestic “gag rule,” which bars federal planning dollars from being distributed to health-care providers that perform abortions or provide referrals for abortion services. At issue were the preliminary injunctions issued by U.S. District Court judges in California, Oregon, and Washington—all states that sit in the Ninth Circuit.

Eleven judges from the appeals court heard arguments in San Francisco regarding challenges brought by 23 states and reproductive rights organizations, including Planned Parenthood and the American Civil Liberties Union’s Reproductive Freedom Project.

The hearing centered on three arguments: whether the new rule violates a 1996 congressional mandate that all pregnancy counseling be nondirective; which side—the government or the plaintiff states—would suffer more harm; and whether the court was bound by a 1991 Supreme Court case, Rust v. Sullivan, to permit the Trump administration’s gag rule to take effect.

As to the claim that the new rule violates the nondirective pregnancy counseling mandate, attorneys for the government argued that the rule prohibits abortion referrals, not abortion counseling. The attorneys insisted in response to queries from the bench that referrals and counseling are not the same thing.

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Title X providers are still permitted to discuss abortion and provide abortion counseling, said Deputy Assistant Attorney General Hashim Mooppan, but they may not refer a patient for abortion services as part of family planning. He also noted that referrals for abortion are permitted if medically necessary, and that the purpose of the law is to ensure that abortion does not become a method of family planning.

When asked whether the new rule’s requirement to refer pregnant patients for prenatal care impermissibly tilts the scale away from abortion in violation of the nondirective counseling mandate, Mooppan argued that the prenatal referral is for the health and well-being of the patient. A woman being pregnant is a medical situation, and that’s why a prenatal care referral is required, Mooppan said.

As to whether the government or plaintiff states would suffer more irreparable harm—one of the elements a court must consider when deciding whether to issue a preliminary injunction—attorneys for the plaintiff states focused on the harm that the domestic gag rule would cause. As news outlets have reported, patients have already seen higher fees and long delays while seeking reproductive health-care services.

However, attorneys for the government tried to downplay the consequences of the Title X program changes. According to the government, the plaintiffs have not suffered the requisite irreparable harm to warrant the preliminary injunctions that the district courts issued. Of the 90 Title X grantees, only 18 have left the program, Mooppan argued, representing a mere 20 percent.

But Ruth Harlow, senior staff attorney at the ACLU Reproductive Freedom Project, pointed out that those numbers don’t paint a full picture. Five states no longer have any Title X program, Harlow said, and the loss of grantees means that more than 500 Title X service sites are no longer in operation. Further, she pointed out, Planned Parenthood grantees and subrecipients are no longer participating in Title X, and Title X funding has ended completely or has funding gaps in 28 states. Planned Parenthood sites that served almost 40 percent of Title X patients no longer serve that population, she argued, adding that the consequences of the gag rule are still unfolding. In other words, more providers may still leave the program.

And the government has not adequately addressed how that gap will be filled.

As to whether the court was bound by Supreme Court precedent, the case in question, Rust v. Sullivan, hung over the proceedings. In Rust, the Supreme Court affirmed and upheld changes to the Title X program that are virtually identical to the Trump administration’s changes. Those changes were promulgated during the Reagan administration in 1988, but failed to take effect due to legal challenges. The Clinton administration eventually rescinded the rules in 1993.

Of course, the parties could not agree on whether the court was bound by Rust. Harlow, arguing on behalf of the plaintiffs, noted that the landscape was different in 1988, and that the Administrative Procedures Act, which requires agency decision-making to be reasoned and rational rather than arbitrary and capricious, demands that claims that regulations are arbitrary and capricious be evaluated on the full administrative record.

But the full administrative record was not before the court—because plaintiff states sought a preliminary injunction before the full administrative record had been produced.

When making a reversal in regulatory policy, Harlow said, an agency needs especially good reasons and needs to look at facts in the record, including taking into account why the previous regulation was put in place. The agency hasn’t done that, Harlow argued.

Attorneys for the government conceded that the full administrative record was not before the court, but insisted nonetheless that plaintiffs’ claims are the same as those that the Supreme Court rejected in Rust.

A ruling from the Ninth Circuit is expected in a few weeks.

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