New Trump administration rules imposing additional hurdles for women seeking abortions can take effect while the government appeals decisions that blocked them, a federal appeals court said Thursday.
The rules ban taxpayer-funded clinics from making abortion referrals and prohibit clinics that receive federal money from sharing office space with abortion providers — a rule critics said would force many to find new locations, undergo expensive remodels or shut down.
More than 20 states and several civil rights and health organizations challenged the rules in cases filed in Oregon, Washington and California. Judges in all three states blocked the rules from taking effect, with Oregon and Washington courts issuing nationwide injunctions. One called the new policy "madness" and said it was motivated by "an arrogant assumption that the government is better suited to direct women's health care than their providers."
But a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco called the rules "reasonable" and said they accord with a federal law that prohibits taxpayer funds from going to "programs where abortion is a method of family planning."
"If the program refers patients to abortion providers for family planning services, then that program is logically one 'where abortion is a method of family planning,'" the panel wrote.
It granted the Justice Department a stay of the lower court injunctions, allowing the rules to take effect. A federal court in Maryland has also issued an order blocking the rules, but that only applied in that state. The Justice Department has appealed it.
"We are pleased that the Ninth Circuit has cleared the way for this important executive branch action to take effect while our appeals are pending," Justice Department spokeswoman Kelly Laco said in an emailed statement. "The Department of Justice's position is supported by long-standing Supreme Court precedent and we are confident we will ultimately prevail on appeal."
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The states and health care providers who challenged the law vowed to keep fighting. Planned Parenthood said it would immediately ask the 9th Circuit to reconsider the decision. The organization serves about 1.6 million of the 4 million low-income patients who receive health care through Title X, a 1970 law designed to improve access to family planning services.
"The news out of the 9th Circuit this morning is devastating for the millions of people who rely on Title X health centers for cancer screenings, HIV tests, affordable birth control and other critical primary and preventive care," Dr. Leana Wen, president of the Planned Parenthood Federation of America, said in a statement. "Planned Parenthood will not let the government censor our doctors and nurses from informing patients where and how they can access health care."
Abortion is a legal medical procedure, but federal laws prohibit the use of Title X or other taxpayer funds to pay for abortions except in cases of rape, incest, or to save the life of the woman. Abortion opponents and religious conservatives say Title X has long been used to indirectly subsidize abortion providers.
The administration's new rules are a return to rules that were adopted in 1988 and subsequently upheld by the Supreme Court. Under the Clinton administration, those rules were abandoned in favor of a requirement that the clinics provide neutral abortion counseling and referrals upon request.
Those challenging Trump's approach pointed to the Affordable Care Act, which bars the government from creating unreasonable barriers to medical care or interfering with communications between the patient and provider. But the 9th Circuit said that just because the government is refusing to subsidize abortion referrals does not mean it's creating barriers or interfering with communications.
While the new rules would permit clinic staff to discuss abortion with clients, they would no longer be required to do so. If patients ask for an abortion referral, staff would be required to give a list of primary care providers with no indication as to which provide abortions.
The list would have to include providers who do not offer abortions, and it could not include clinics or organizations that aren't primary care providers, such as Planned Parenthood.
"This decision is a major step toward the Trump Administration being able to ensure that all Title X projects comply with the Title X statute and do not support abortion as a method of family planning," Health and Human Services Secretary Alex Azar said in a news release.