February 24, 2020 / 6:52 PM / 6 months ago

Trump abortion referral 'gag rule' can be enforced, U.S. appeals court says

Feb 24 (Reuters) - A sharply divided federal appeals court on Monday said the Trump administration may enforce a controversial rule, which critics label 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 enforcing the rule, which deprives clinics of Title X family planning funds if they provide abortion referrals.

The rule, announced last February, 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 all Title X funds.

Planned Parenthood left the program last August, rather than comply with the rule, which the U.S. Department of Health and Human Services enforces.

In a statement, California Attorney General Xavier Becerra called the decision “troubling,” and the rule a “reckless” means for Trump to curb access to abortions.

He did not say whether the state will appeal to the U.S. Supreme Court, which has a conservative majority.

The rule in question largely restored a rule created in 1988 during the Reagan administration and upheld by the Supreme Court in 1991, but suspended by the Clinton administration in 1993.

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 1988 rule blessed by the Supreme Court.

“A counselor providing nondirective pregnancy counseling ‘may discuss abortion’ so long as ‘the counselor neither refers for, nor encourages, abortion,’” she wrote, quoting the rule. “There is no ‘gag’ on abortion counseling.”

The appeals court returned the cases to federal district courts for further proceedings. A federal judge in Baltimore on Feb. 14 blocked enforcement of the rule 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 Donald 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 Stevve Orlofsky)

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