Appeals Court Upholds ‘Domestic Gag Rule’

By Ayana Byrd Feb 25, 2020

On Monday, a federal court upheld the Trump administration’s rule that bans federally funded family planning centers from referring women for abortions. The decision not only sets the stage for a possible Supreme Court case but also denies millions of lower-income earning women affordable access to reproductive health care.

Judges from the United States Court of Appeals for the 9th Circuit voted 7-4 in favor of the regulation. The Washington Post reports: "Monday’s ruling is the first substantive court decision on a move by the Department of Health and Human Services that heightened a long-brewing antagonism between social conservatives on one side and Planned Parenthood Federation of America and other family planning groups on the other."

The regulation—which reproductive rights advocates call a domestic “gag rule”—changes the requirements health care providers must meet to receive federal money via Title X, the federal family planning program established in 1970. It provides $286 million in funding for programs that provide services like birth control, mammograms and screenings for breast cancer and cervical cancer. Those most impacted by the funding are people of color, according to Planned Parenthood.

Under the rule, health care providers will be able to discuss abortion with patients but will be barred from saying where one can be obtained. Clinics will also be able to omit abortion from conversations with pregnant women who are weighing their options—previously, a clinic could not receive federal funding unless all options were discussed.

The rule also mandates that every pregnant patient must get a referral for prenatal care; that clinics licensed to perform abortions will have to do so in a separate facility from where they provide other services, and that they must keep separate financial records for abortion-related expenses, according to The Post.

As a result of the new rule—which went into effect in June—Planned Parenthood withdrew from the Title X program last August. According to the organization, more than half of its patients who relied on Title X funding are now without the provider they had been turning to for medical care.

Planned Parenthood’s acting President and CEO Alexis McGill Johnson said in a statement in response to the court decision:

Your access to health care should not depend on how much you earn, where you live, or who you are. The Trump administration’s dangerous gag rule is causing immense harm across the country.  This unethical rule has put up egregious barriers for people with low incomes to get birth control and preventive care like STI testing, education, and cancer screenings. With the court failing to block the rule, Congress must take action to reverse this dangerous rule and restore access to care for millions through Title X. Planned Parenthood will never give up on our patients and we will continue to do everything we can to fight this rule.

Planned Parenthood, the American Medical Association (AMA), the American Civil Liberties Union (ACLU) and 22 states filed lawsuits last March to block the rule. Ruth Harlow, senior staff attorney at the ACLU’s Reproductive Freedom Project, said in an interview with The Post that the decision “is quite devastating to the Title X program and patients.”

Maryland is the only state that will not be affected by the ruling. As Colorlines previously reported, in March of last year, it passed a law that ended the state’s inclusion in the Title X program. The law requires the governor to use state money to fund the family planning program. Maryland’s population is nearly one-half people of color, with Black residents making up 30.8 percent of the state and Latinx residents accounting for 10.1 percent.

The Post reports, “An appeal could request that the entire 9th Circuit review the ruling of the 11-judge panel or that the Supreme Court take the case.”