Metropolitan News-Enterprise


Tuesday, February 25, 2020


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Becerra Blasts Ninth Circuit’s Opinion on Abortion Referrals

Attorney General Echoes View of Dissent That Regulation ‘Gags’ Doctors From Advising Termination Of Pregnancies on Penalty of Denial of Title X Funds to Clinics; Majority Says No ‘Gag’ Exists


By a MetNews Staff Writer


California Attorney General Xavier Becerra yesterday lambasted the Ninth U.S. Circuit Court of Appeals’s 7-4 decision which upholds a Department of Health and Human Services regulation that bars a gift of Title X funds to clinics that refer women for abortions, with the state’s chief prosecutor agreeing with the dissent that the regulation creates a “gag rule.”

The decision, in California v. Azar, 19-15974, vacates preliminary injunctions issued by district courts in California, Oregon and Washington blocking the HHS from enforcing its 2019 regulation—one which is similar, the majority opinion points out, to one adopted in 1988 which the U.S. Supreme Court upheld in 1991 in Rust v. Sullivan.

The dissenter, Judge Richard Paez of Los Angeles, protested:

“Among other things, the Rule gags health care providers from fully counseling women about their options while pregnant and requires them to steer women toward childbirth (the ‘Gag Rule’).”

He went on to say of the regulation:

“By its very terms, it requires a doctor to refer a pregnant patient for prenatal care, even if she does not want to continue the pregnancy, while gagging her doctor from referring her for abortion, even if she has requested specifically such a referral….The Rule does not stop there. If a doctor provides a patient a referral list of primary health care providers, no more than half of those providers may offer abortion services….And if the patient asks who on the list might actually provide her an abortion? The Rule muzzles her doctor from telling her….The result is that patients are steered toward childbirth at every turn.”

Becerra’s Statement

Agreeing with Paez, Becerra said in a statement:

“Today’s court ruling on the Trump Administration’s Gag Rule is troubling. The Gag Rule interferes with healthcare decisions that should remain between women and their healthcare providers.

“This reckless rule is just another attempt by the Trump-Pence Administration to roll back women’s access to reproductive healthcare. The rule targets the Title X program—which serves low income women, LQBTQ individuals, young people, and families—and obstructs access to care by gagging medical professionals from discussing all available options with their patients. Leaving women in the dark about their healthcare and restricting doctors from providing candid advice is simply not in the best interest of public health.”

Paez was joined in the dissent by Chief Judge Sidney Thomas and Judges Kim Wardlaw and William Fletcher. All four were appointed by Democratic President Bill Clinton.

Majority Opinion

Writing for the majority was Judge Sandra Ikuta, who was joined by Judges Jay Bybee, Consuelo Callahan, Edward Leavy, Kenneth K. Lee, Eric D. Miller, and Milan Smith Jr. All are appointees of Republican presidents.

Ikuta declared that the rule “does not impose a ‘gag’ on abortion counseling,” explaining that “a counselor ‘may discuss abortion’ but is not required to do so.”

Title X of the Public Health Service Act, enacted in 1970, gives the HHS authority to make grants to “voluntary family planning projects” but, in §1008, specifies: “None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.” The 1988 regulation, barring the funding of clinics that counseled women to obtain abortions or referred them to a facility where they could be procured, was designed to implement §1008.

Seesawing Interpretations

Ikuta recited that when the U.S. Supreme Court held the regulation valid, President Bill Clinton directed the HHS to suspend it, which it did. In subsequent years, she said, the HHS’s interpretation of §1008 “seesawed through multiple formulations: from permitting—then requiring—nondirective counseling on abortion as a method of family planning…to prohibiting counseling and referrals for abortion as a method of family planning…and then to once again requiring nondirective counseling and referrals for abortion on request.”

The jurist wrote:

“In March 2019, HHS promulgated regulations that are similar to those adopted by HHS in 1988 and upheld by Rust. But the 2019 rule is less restrictive in at least one important respect: a counselor providing nondirective pregnancy counseling ‘may discuss abortion’ so long as ‘the counselor neither refers for, nor encourages, abortion.’…There is no ‘gag’ on abortion counseling.”

She said “the Final Rule is a reasonable interpretation of § 1008.”

Paez’s View

Paez argued in his dissent:

“What can a doctor even say when confronted with her patient’s questions about abortion? The Rule bars doctors from ‘promot[ing]...or supporting] abortion as a method of family planning, []or tak[ing] any other affirmative action to assist a patient’ in exercising her right to abortion….Imagine a patient visits her Title X provider and asks whether she can get an abortion at the local hospital. Would it qualify as “promoting” abortion to answer the question? The Gag Rule makes doctors who desire to provide their patients with accurate information ‘walk on eggshells to avoid a potential transgression of the...Rule, whereas those describing the option of continuing the pregnancy face no comparable risk.’…

“The result is Kafkaesque.”

In a footnote, Ikuta responded:

“But this ‘Kafkaesque’ scenario is belied by the Final Rule itself, which expressly authorizes counseling on abortion while prohibiting referrals for abortion.”

She noted that the regulation “provides its own example of a straightforward conversation with a client who asks about abortion,” quoting it as saying:

“[When a] pregnant woman requests information on abortion and asks the Title X project to refer her for an abortion[, then] [t]he counselor tells her that the project does not consider abortion a method of family planning and, therefore, does not refer for abortion. The counselor offers her nondirective pregnancy counseling, which may discuss abortion, but the counselor neither refers for, nor encourages, abortion.”

Transgender Men

Paez asserted:

In vacating the district courts’ preliminary injunctions, the majority sanctions the agency’s gross overreach and puts its own policy preferences before the law. Women and their families will suffer for it.”

He said in a footnote:

“While the Rule disproportionately impacts women, people of all genders rely on Title X services, can become pregnant, and will suffer the consequences of the Rule.”

He pointed to a California regulation relating to discrimination in employment relating to pregnancy which says:

“ ‘Eligible female employee’ includes a transgender employee who is disabled by pregnancy.”


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