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Ninth Circuit Will Revisit Abortion 'Gag Rule'

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By Christopher Coble, Esq. on July 08, 2019 2:56 PM

Less than three weeks ago, a three-judge panel of the Ninth Circuit allowed a Trump administration rule pulling federal funds from health clinics that provide abortion referrals to go into effect. Last week, though, Chief Ninth Circuit Judge Sidney Thomas put the ban on hold again, ruling that the question would go to an en banc rehearing.

"Upon the vote of a majority of nonrecused active judges, it is ordered that these cases be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3," Judge Thomas wrote. "The three-judge panel Order on Motions for Stay Pending Appeal in these cases shall not be cited as precedent by or to any court of the Ninth Circuit."

Gagged, and Un-Gagged

The case involves an alleged "abortion gag rule" that requires Title X-funded service providers to maintain "clear financial and physical separation" from centers that perform abortions and forbids doctors working at such clinics from discussing abortion with patients. Title X established federal funding for family planning services for low-income and uninsured people. The new rule would also require Title X-funded clinics refer pregnant women to prenatal care, even if they plan to end their pregnancies.

Twenty-one states, the District of Columbia, and several other plaintiffs are challenging the rule, claiming it violates a host of federal laws, including the Affordable Care Act, which prohibits "unreasonable barriers" to obtaining appropriate medical care and "interfer[ing] with communications regarding a full range of treatment options." The National Family Planning and Reproductive Health Association claims its member clinics would be forced to either exit the Title X program or provide "substandard care in violation of their professional norms."

Back and Forth Block

Three different U.S. District judges -- Judge Stanley Bastian in Yakima, Washington; Judge Michael McShane in Portland, Oregon; and Judge Edward Chen in San Francisco, California -- blocked the rule from going into effect to varying degrees. But Ninth Circuit Judges Edward Leavy, Consuelo Callahan, and Carlos Bea found the policy was a reasonable interpretation of Title X last month, and they removed those injunctions. The rule will now be back on hold until the full Ninth Circuit can decide the matter.

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