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Federal appeals court rules Title X ‘gag’ regulations can be enforced
© WikiMedia (James McNellis)
Federal appeals court rules Title X ‘gag’ regulations can be enforced

The US Court of Appeals for the Ninth Circuit ruled Monday that the Trump administration can enforce regulations prohibiting Title X receipts from referring patients to abortion providers. The opinion removed three states’ preliminary injunctions against the rules and rejected a majority of the claims by the plaintiffs.

Title X is a federal program that offers funding to family planning services. Title X prohibits the granting of funds to a program where abortion is a method of family planning. In 2019 the US Department of Health and Human Services (HHS) promulgated rules expanded this prohibition, restricting Title X receipts from referring patients to other providers that may provide abortion services. The rules also required complete physical separation of abortion facilities, including separate staff and records. The rules were dubbed a “gag” rule, allegedly preventing Title X providers from discussing abortion in any capacity with their patients.

In response to the new rules, numerous Democratic states, cities and abortion providers sued HHS, claiming the regulations interfered with the ability of providers to make healthcare decisions and counsel patients on all family planning options available to them. The plaintiffs further argued the rules would affect numerous people who cannot go elsewhere for abortion services (as many low-income and rural communities rely almost entirely on Title X health centers for family planning services), and therefore the rules would make access to abortion almost impossible.

District courts in California, Washington and Oregon granted temporary injunctions on the rules until a three-judge appeals court panel allowed it to go into effect last year. The Ninth Circuit granted en banc review.

In its opinion, the Ninth Circuit rejected all plaintiffs’ arguments as to why the rules should be found invalid. Specifically, the Ninth Circuit rejected the argument that the rules “gag” abortion providers from discussing abortion services. The Ninth Circuit additionally rejected the contention that the rules are inconsistent with the Affordable Care Act, which currently prohibits regulations that restrict access to healthcare.

Overall, the Ninth Circuit did not find that HHS acted arbitrarily or capriciously in adopting the rules, and, as a result, the rules can be enforced until a decision is rendered upon remand. The Ninth Circuit took the position that the regulations merely reflect Congress’ choice not to fund abortion services, not actually restricting individual providers.