Appeals court allows US to withhold funds from clinics providing abortions and referrals

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Health Law

By Debra Cassens Weiss

June 21, 2019, 10:30 am CDT

Image from Shutterstock.com.

A federal appeals court on Thursday allowed the Trump administration to withhold federal funds from clinics that provide abortions or referrals for the procedure. The San Francisco-based 9th U.S. Circuit Court of Appeals lifted injunctions that had barred the administration from implementing the regulations under the Title X grant program for family planning services. The Wall Street Journal, the Washington Post, BuzzFeed News and Politico have coverage. Twenty-one states, Washington, D.C., and grantees filed suits seeking to block the so-called family planning gag rule from taking effect. The 9th Circuit decision lifts stays by district judges in California, Oregon and Washington. Regulations barring abortion referrals take effect immediately. Regulations requiring family planning clinics to move abortion services to separate facilities and to find separate funding for abortions don’t take effect until March 2020. Clinics may provide lists of health care providers to women under the regulations, but they can’t identify which ones perform abortions. Title X provides that no family planning funds shall be used in programs where abortion is a method of family planning. Regulations interpreting the law have flip-flopped over the years. Regulations in 1988 required clinics to keep projects that received federal family planning funds physically and financially separate from abortion-related services. In 2000, new regulations required clinics receiving the federal funds to provide “nondirective” abortion counseling and abortion referrals upon request. They also eliminated the physical separation requirement. The regulations changed again this year, substantially reverting to the 1988 regulations. One difference is that the new rules allow but do not require neutral presentation of abortion information during nondirective pregnancy counseling. The 9th Circuit’s per curiam opinion noted that the Supreme Court had found the first version of the regulations were a reasonable interpretation of Title X in the 1991 decision Rust v. Sullivan. The appeals court rejected arguments that an appropriations rider and a provision in the Affordable Care Act had altered Title X. The appropriations rider said all pregnancy counseling shall be nondirective, while the ACA said no regulation should create unreasonable barriers to obtaining appropriate medical care. Neither provision impliedly repealed or amended Title X, the appeals court said. The appeals court also rejected arguments that the regulations were arbitrary and capricious in violation of the Administrative Procedure Act. District court judges accepting that argument substituted their own judgment for that of the Department of Health and Human Services, which promulgated the regulations, the appeals court said. Hat tip to How Appealing.

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