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Federal court rules Trump’s abortion ‘gag rule’ can take effect immediately

“Planned Parenthood will not stand for this attack on millions of people across the country."

Pro-choice activists, politicians and others associated with Planned Parenthood gather for a news conference and demonstration at City Hall against the Trump administrations title X rule change on February 25, 2019 in New York City. The proposed final rule for the Title X Family Planning Program, called the “Gag Rule,” would force a medical provider receiving federal assistance to refuse to promote, refer for, perform or support abortion as a method of family planning. (Photo Credit: Spencer Platt/Getty Images)
Pro-choice activists, politicians and others associated with Planned Parenthood gather for a news conference and demonstration at City Hall against the Trump administrations title X rule change on February 25, 2019 in New York City. The proposed final rule for the Title X Family Planning Program, called the “Gag Rule,” would force a medical provider receiving federal assistance to refuse to promote, refer for, perform or support abortion as a method of family planning. (Photo Credit: Spencer Platt/Getty Images)

The Trump administration’s family planning “gag rule” to ban federally funded clinics from providing abortion or abortion referrals will be allowed to go into effect, a federal appeals court decided Thursday.

The U.S. Court of Appeals for the Ninth Circuit granted a request from the Department of Health and Human Services (HHS) to lift preliminary injunctions issued by lower courts in California, Oregon, and Washington. The new Title X rule will go into effect immediately in every state but Maryland, while several lawsuits continue.

“Despite the devastating effects on Title X care, the government has pushed us one step closer to implementation of its harmful regulation to overhaul the nation’s family planning program,” said Clare Coleman, President & CEO of the National Family Planning & Reproductive Health Association (NFPRHA), a national organization representing family planning clinics and a plaintiff in one of the lawsuits.

“The government is relentless in its drive to impose this ideological rule; and we remain equally intent on exercising all of our legal options to prevent the Trump administration from succeeding,” she said in a statement to ThinkProgress.

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HHS was “pleased” with the court’s decision. “This decision is a major step toward the Trump Administration being able to ensure that all Title X projects comply with the Title X statute and do not support  abortion as a method of family planning,” said Secretary Alex Azar, in a statement.

The Trump administration’s regulation seeks to ban abortion providers from participating in Title X, the country’s only federal family planning program. The program serves about four million people every year, who rely on subsidized services like birth control and sexually transmitted infections screenings. The majority of them earn below the poverty level and two-thirds are people of color.

Existing federal law already says federal dollars cannot pay for abortions.

If the regulation is fully implemented, federal officials would strip abortion providers of critical funding unless they have a physical separation of abortion and other health and family planning services.

Planned Parenthood will be hit particularly hard by the rule, as its affiliates serve 40% of Title X patients. Planned Parenthood says it can lose up to $60 million.

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“Planned Parenthood will not stand for this attack on millions of people across the country. We will be immediately seeking emergency relief from the Court of Appeals,” Planned Parenthood President Leana Wen said in a statement.

“Planned Parenthood will not let the government censor our doctors and nurses from informing patients where and how they can access health care. We will continue to fight the Trump administration in the courts and alongside champions in Congress to protect everyone’s fundamental right to health care,” she added.

Planned Parenthood said Thursday that it will not participate in the Title X program if the rule permanently takes effect. In the short term, it will rely on emergency funds to keep its clinics running, so patients are unlikely to see a difference in their care.

Other independent clinics who receive Title X dollars are still trying to assess what Thursday’s ruling means for them, but it’ll likely devastate providers. They will not operate similarly under the rule and patients will notice.

“Providers have to make the decision on whether to stay or leave the program,” a NFPRHA spokesperson told ThinkProgress. “Leaving the program means they may not be able to subsidize care for low income people because they are losing a major source of revenue. That of course will impact patients.”

The rule was going to start taking effect May 3, but various federal district courts stopped that from happening. In essence, the rule will divert funds from clinics like Planned Parenthood to centers that have a history of misleading patients.

Critics call the new regulation a gag rule since it forbids providers from even mentioning abortion during pregnancy counseling. “It is absolutely a gag rule of what I’m able to say to my patients,” said Jamila Perritt, an OB/GYN and Physicians for Reproductive Health fellow, at a House hearing Wednesday.

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The three-judge panel allowed the Trump administration to enforce the rule pending a final decision, because they believe the administration is likely to prevail in court.

“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,” said the decision, issued by the three judges appointed by Republican presidents.

An HHS official admitted to lawmakers Wednesday that she does not know of any instance when Title X dollars paid for abortions — this is currently illegal — but said the department wants to prevent “co-mingling.”

Florida State University law professor Mary Ziegler, who closely tracks abortion law, said on Twitter that the ruling was “[n]ot a huge surprise, but a consequential one.” That’s because the Trump rule resembles Reagan-era rules that were upheld by the federal courts. Ziegler previously told ThinkProgress that the best case scenario for reproductive rights and justice activists was a Democrat taking back the White House in 2020 and rescinding the rule.  

This post was updated to include comment from the National Family Planning & Reproductive Health Association and the Department of Health and Human Services.