Appeals Court Permits HHS Rule Barring Abortion Facilities and Referral Sites From Federal Family Planning Funding

SAN FRANCISCO, Calif. — The Ninth Circuit Court of Appeals has allowed a Health and Human Services (HHS) rule that would disqualify abortion facilities from receiving federal funds, as well as any locations that promote, support or refer for abortions, to take effect while the Trump administration appeals other court rulings that blocked the requirements.

“Absent a stay, HHS will be forced to allow taxpayer dollars to be spent in a manner that it has concluded violates the law, as well as the government’s important policy interest in ensuring that taxpayer dollars do not go to fund or subsidize abortions,” the three-judge panel wrote in a unanimous decision on Thursday.

“As the Supreme Court held … , ‘the government may ‘make a value judgment favoring childbirth over abortion, and … implement that judgment by the allocation of public funds,’ and by ‘declining to ‘promote or encourage abortion,'” it noted.

As previously reported, HHS announced forthcoming changes this past March that revert to the 1988 standard under the Reagan administration, which disqualified family planning organizations from receiving Title X funds if abortions are performed in the same building where contraceptives and other family planning services are offered.

Abortion providers would either have to divide their services into two separate physical locations, or lose funding.

“This rule will require Title X providers to maintain physical and financial separation from locations which provide abortion as a method of family planning,” a document released by HHS outlined.

“This physical and financial separation will ensure compliance with the statutory requirement that Title X funding not support programs where abortion is a method of family planning—and is consistent with the plain text of Section 1008, legislative history, and case law,” it stated.

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The rule change would also remove a requirement under the Clinton administration to refer for abortions. However, not only would recipients now not be mandated to refer, but they would be completely prohibited from doing so. Title X grantees also may not “perform, promote, or support abortion as a method of family planning.”

HHS explained that it does not believe that the Clinton-era rule is “appropriate or permissible.”

“[T]he department believes the referral requirement is in conflict with federal conscience protections, such as the Church, Coats-Snowe, and Weldon Amendments, for individual and institutional entities which object, and is finalizing the proposal to remove that requirement from the regulations,” it outlined.

“Furthermore, the department believes that, in most instances when a referral is provided for abortion, that referral necessarily treats abortion as a method of family planning.”

Therefore, not only would Planned Parenthood entities that currently receive Title X funding not be allowed to provide family planning services in the same building in which abortions are performed, those locations that do not perform abortions would additionally be barred from referring any woman for a termination—or even promoting abortion as a method of family planning.

The rules would likely — in effect — defund the vast majority, if not all, of the nation’s Planned Parenthood locations.

However, nearly two dozen states and the District of Columbia decided to sue to challenge the requirements, and judges in Washington, Oregon and California had struck down the HHS rule.

But on Thursday, the Ninth Circuit Court of Appeals ruled that the lower courts had not sufficiently analyzed certain aspects of the case and opined that the Trump administration was likely to win the legal challenge.

“To find that the final rule’s enactment was arbitrary and capricious, the district courts generally ignored HHS’s explanations, reasoning, and predictions whenever they disagreed with the policy conclusions that flowed therefrom,” it wrote.

The panel found it understandable that HHS wanted to ensure federal funds didn’t go toward abortion services by requiring physical separation of facilities, as well as the view that the rule might attract new Title X recipients who were otherwise deterred by the Clinton-era requirement that facilities refer for abortions.

“HHS and the public at large are likely to suffer irreparable harm in the absence of a stay, which are comparatively greater than the harms Plaintiffs are likely to suffer,” it wrote.

“HHS is likely to prevail in its challenge of the preliminary injunction orders before a merits panel of this court (which is set to hear the cases on an expedited basis),” the court opined. “[W]e conclude that a stay of the district courts’ preliminary injunction orders pending appeal is proper.”

Read the ruling in full here. 

Planned Parenthood lamented the ruling, with President Leana Wen remarking in a statement that the decision 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.”‘

Wen characterized the prohibition against referrals to abortion facilities as a “gag rule.”

“Planned Parenthood will not let the government censor our doctors and nurses from informing patients where and how they can access health care,” she said.

The U.S. Department of Justice applauded the outcome, however.

“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 a statement, according to CBS News. “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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