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Trump abortion ‘gag’ rule blocked by federal judge

Washington state Attorney General Bob Ferguson speaks at a news conference announcing a lawsuit challenging the Trump administration's Title X "gag rule" in Seattle. (Elaine Thompson/AP)

A federal judge issued a nationwide injunction Thursday, temporarily blocking the Trump administration from imposing new antiabortion restrictions on the use of federal family planning funds designed to assist 4 million low-income women.

The rule, promulgated in March by the Department of Health and Human Services, would have barred programs receiving the money from saying or doing anything to advise or assist a patient about securing an abortion. Critics called it a “gag rule.”

Groups receiving money under the Title X program, about $286 million annually, already were prohibited from performing abortions with those funds. But under the new rule, they could no longer refer a patient for an abortion and would also have to maintain a “clear physical and financial separation” between services funded by the government and abortion services or referrals.

Planned Parenthood, a regular target of President Trump and HHS, would have been particularly hard hit as the nation’s largest provider of reproductive health services.

U.S. District Judge Stanley Bastian in Yakima, Wash., granted a preliminary injunction in response to lawsuits from the state of Washington and the National Family Planning and Reproductive Health Association, among others. The order was nationwide in scope, barring HHS from implementing the administration’s rule entirely and preserving the status quo.

Bastian said the restrictions probably were violations of the funding law and the Affordable Care Act, and were “arbitrary and capricious” under the Administrative Procedure Act.

“It reverses long-standing positions of the Department without proper consideration of sound medical opinions and the economic and non-economic consequences,” he wrote.

The challengers, he said, have demonstrated that the rule “likely violates the central purpose of Title X, which is to equalize access to comprehensive, evidence-based, and voluntary family planning.”

In a particularly scathing passage, Bastian wrote that the rule probably “creates unreasonable barriers for patients to obtain appropriate medical care; impedes timely access to health care services; interferes with communications regarding a full range of treatment options between the patient and their health care provider, restricts the ability of health care providers to provide full disclosure of all relevant information to patients” and “violates the principles of informed consent and the ethical standards of health care professions.”

He scolded HHS for offering “no reasoned analysis” for changing the long-standing rule.

The administration said the restrictions were justified by a 1988 Supreme Court ruling in Rust v. Sullivan upholding a gag rule on counseling under the family planning program. But Bastian said the law and regulations had been changed since then, making the government’s position some 30 years later out-of-date.

Washington state Attorney General Bob Ferguson, who brought the case, said the ruling “ensures that clinics across the nation can remain open and continue to provide quality, unbiased healthcare to women.”

This week, a federal judge in Oregon, Michael McShane, said he would issue an order against HHS as well, in a challenge brought by a group of 20 states and the American Medical Association. He indicated that his injunction might be narrow, however.

Both judges are appointees of President Barack Obama.

The decisions do not resolve the legal merits of the cases, but are based on the judges’ determination that the challengers are likely to prevail on the merits after a trial and that, in the meantime, allowing the restrictions to take effect would cause “irreparable harm” to the programs and those they serve.

“This is a major victory for millions of Americans whose healthcare is at stake under President Trump’s dangerous and legally indefensible gag rule,” Inslee said in a statement.

A spokeswoman for HHS said the agency does not comment on pending litigation.

The decision was one of at least 70 court defeats for the Trump administration since Trump took office, by a Washington Post count.

Some of those earlier cases also involved efforts to cut off funding to Planned Parenthood counseling programs aimed at helping teenage girls avoid pregnancy.

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Is it a gag rule after all? A closer look at changes to Title X funding regarding abortion.