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Trump administration’s abortion ‘gag rule’ can take effect, court rules

Planned Parenthood, which stands to lose tens of millions in funding, and state attorneys general from California, Oregon and Washington say they’ll continue to fight.

The Trump White House wants to roll back Obama's birth control mandate and defund Planned Parenthood. But women’s health advocates are bracing for a fight. (Video: Luis Velarde/The Washington Post, Photo: Brian Monroe/The Washington Post)

A panel of federal appeals court judges ruled on Thursday that a Trump administration family planning “gag rule” that could cut as much as $60 million in Title X funds from Planned Parenthood could go into effect immediately.

The decision is a major setback for the women’s health-care provider and for 21 state attorneys general who filed lawsuits shortly after the policy was published in March, arguing it would undermine the patient-provider relationship and endanger the health of millions of women.

Health and Human Services Secretary Alex Azar called the decision “a major step toward the Trump administration being able to ensure that all Title X projects . . . do not support abortion as a method of family planning.”

But Leana Wen, president of Planned Parenthood Federation of America, called the news “devastating” for the millions of women who rely on the program for services such as cancer screenings, HIV tests and birth control, and said the organization would immediately appeal.

“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 new rule would make clinics ineligible to receive funds if they provide abortions or referrals for them. Department of Health and Human Services officials have said the rule is necessary because, in the words of deputy assistant secretary Diane Foley speaking on Capitol Hill this week, of “grave concerns” that taxpayer money was going toward abortions, which is not legal.

California, Oregon and Washington recently won preliminary injunctions from lower courts temporarily blocking the rule from going into effect. HHS appealed and Thursday’s decision by the U.S. Court of Appeals for the Ninth Circuit was the result.

Judges Edward Leavy, Consuelo M. Callahan and Carlos T. Bea — all appointed by Republican presidents — wrote that the government is likely to prevail with its argument that the lower courts erred in concluding the rule probably violated the Administrative Procedure Act. They noted the U.S. Supreme Court upheld a similar HHS regulation in its 1991 Rust v. Sullivan decision that prohibited federally funded clinics from abortion counseling, which “largely foreclosed any attempt to argue that the Final Rule was not a reasonable interpretation” of what Congress intended when it established the Title X program.

The judges also said that HHS “and the public at large are likely to suffer irreparable harm in the absence of a stay, which were comparatively greater than the harms plaintiffs were likely to suffer.”

Planned Parenthood, which is by far the largest recipient of Title X funds, has been a target of social conservatives in the administration who hope to shift the money to faith-based organizations with a focus on abstinence and fertility awareness.

Parts of the rule, such as no longer being able to provide abortion referrals, would go into effect immediately. Other requirements, such as physically separating abortion services from non-abortion services, would have to be completed by March 4, 2020.

Anti-abortion groups applauded the ruling, along with the administration’s efforts to restrict the family planning program.

“People don’t want to be in business with the nation’s number one abortion vendor, and if Planned Parenthood wants to provide family planning services, then rules are in place to make sure that the focus stays on family, not abortion,” said Kristan Hawkins, president of Students for Life of America.

But critics of the HHS rule were quick to say this was not the final decision on the rule and that the legal battle is far from over.

“This rule is yet another example of the Trump administration’s overreach that could make it harder for women to access health care,” Michelle Kuppersmith, director of Equity Forward, said in a statement. “Secretary Alex Azar and the unqualified ideologues who are responsible for this action should be held accountable for their conduct.”

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