By Jonathan Stempel
(Reuters) – A sharply divided federal appeals court on Monday said the Trump administration may enforce a rule labeled by critics as a “gag rule” that could deprive abortion providers of federal funding for family planning.
In a 7-4 decision, the 9th U.S. Circuit Court of Appeals upheld a ruling last June by a unanimous three-judge panel to lift injunctions won by California, Oregon and Washington against the rule, which deprives clinics that provide abortion referrals of Title X family planning funds.
The rule was meant to help President Donald Trump fulfill a 2016 campaign pledge to end federal support for Planned Parenthood, which received about $60 million annually, or one-fifth, of Title X funds.
Planned Parenthood left the program last August rather than comply with the rule, which is enforced by the U.S. Department of Health and Human Services.
In a statement, California Attorney General Xavier Becerra said the “troubling” decision helps Trump “roll back women’s access to reproductive healthcare.”
Planned Parenthood’s acting president Alexis McGill Johnson called on Congress to overturn the rule, which she said created “egregious barriers” to healthcare for low-income people.
A U.S. Department of Justice spokeswoman said the decision properly upholds HHS’ prohibition on using taxpayer money to “subsidize abortion” through Title X.
Writing for Monday’s majority, Circuit Judge Sandra Ikuta said HHS was owed “broad deference” and acted reasonably, not arbitrarily or capriciously, in adopting a “less restrictive” rule than the one blessed by the Supreme Court in 1988.
“There is no ‘gag’ on abortion counseling,” Ikuta wrote, saying the rule allows healthcare providers to discuss, though not to encourage, abortion.
The appeals court returned the cases to federal district courts for further proceedings. A federal judge in Baltimore on Feb. 14 blocked the rule’s enforcement in Maryland.
Circuit Judge Richard Paez dissented, saying the rule would deprive people of cancer screening, HIV testing and other needed healthcare, and undermine Congress’ intent that patients be able to communicate openly with healthcare providers.
“The consequences will be borne by the millions of women who turn to Title X-funded clinics for lifesaving care and the very contraceptive services that have caused rates of unintended pregnancy – and abortion – to plummet,” he wrote. “I strongly dissent.”
All seven judges in the majority were appointed by Republican presidents, including two by Trump. The dissenters were appointed by Democratic presidents.
The cases in the 9th U.S. Circuit Court of Appeals include California v Azar et al, No. 19-15974; Oregon et al v Azar et al, No. 19-35386; and Washington et al v Azar et al, No. 19-35394.
(Reporting by Jonathan Stempel in New York and Nate Raymond in Boston; Editing by Steve Orlofsky and Sonya Hepinstall)