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Ninth Circuit Allows Trump Administration’s Abortion Referral Restrictions to Take Effect

Jack Crowe

A three-judge panel of the Ninth Circuit Court of Appeals ruled Thursday in favor of the Trump administration, allowing its revised regulations barring publicly-funded health clinics from referring women to abortion clinics to take effect.

The Department of Health and Human Services’ revised Title X regulation will go into effect pending the outcome of an appeal of three lower court decisions blocking the rule change.

“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,” the judges wrote in a 25-page opinion.

“Title X is a limited grant program focused on providing pre-pregnancy family planning services — it does not fund medical care for pregnant women,” the opinion adds. “The Final Rule can reasonably be viewed as a choice to subsidize certain medical services and not others.”

The rule change, which prohibits clinics that receive federal funds under Title X from discussing abortion with patients and from referring them to abortion clinics, was set to take effect in May until a federal judge in Oregon blocked its implementation.

U.S. District Judge Michael McShane called the restriction a “ham-fisted approach to public health policy” and said that the so-called “gag rule” infringes on doctors’ ability to provide adequate health care and would “irreparably harm” low-income women, who rely on publicly-funded clinics.

In the decision handed down Thursday, the three-judge panel reversed McShane’s logic, arguing that the public interest would be “irreparably harmed” if the nationwide injunction blocking the rule’s implementation were to be maintained in perpetuity.

“Because HHS and the public interest would be irreparably harmed absent a stay, harms to Plaintiffs from a stay will be comparatively minor, and 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), we conclude that a stay of the district courts’ preliminary injunction orders pending appeal is proper,” the opinion states.

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