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Appeals court upholds Trump Administration rule barring abortion referrals

American Medical Association says it will continue to fight the rule's effective 'gag' order on physicians.

Susan Morse, Managing Editor

A U.S. appeals court has upheld a Trump administration rule barring providers that get Title X federal funding from referring patients for abortions.

The American Medical Association has called the ruling a gag order on physicians. The AMA stopped short of saying it would appeal the decision handed up by the Ninth Circuit Court of Appeals, but AMA President Dr. Patrice A. Harris said, "As this case moves to the next stage, we'll continue to fight for open conversations between patients and physicians – the cornerstone of quality healthcare."

Harris said the rule upheld by the Ninth Circuit Court of Appeals is government overreach that demands physicians violate their ethical obligations to have open, frank conversations with patients.

WHAT HAPPENED

In February 2019, the Trump Administration issued a final rule barring Title X funds from being used for abortion referrals. It also prohibited clinics that receive Title X funds from sharing office space with abortion providers.

Federal laws already prohibit the use of Title X funds to pay for abortions except in certain cases such as rape, incest, or to save the life of the woman.

In March 2019, the American Medical Association, the Planned Parenthood Federation of America, an estimated 21 states and the District of Columbia, among others, filed lawsuits, claiming the rule was unconstitutional.

Three district courts in three states entered preliminary injunctions against enforcement of the rule by the Department of Health and Human Services.

In a 7-4 decision on Monday, the Appeals Court went against those lower court rulings in Washington, Oregon and California.

The court vacated the injunctions entered by the district courts and remanded the cases for further proceedings consistent with its opinion.

WHY THIS MATTERS

There is no "gag" on abortion counseling, the appeals court said in its decision.

Title X prohibits grant funds from being used in programs where abortion is a method of family planning.

The Trump Administration's new rule is simply a return to regulations adopted by HHS in 1988 and which were upheld by the Supreme Court in  1991 under Rust v. Sullivan, the court said.

The Clinton Administration relaxed those rules.

Under the 2019 final rule, a counselor may discuss abortion so long as the counselor neither refers for, nor encourages, abortion, the appeals court said.

"Indeed, the Final Rule provides its own example of a straightforward conversation with a client who asks about abortion: '[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.'"

Under the Supreme Court's jurisprudence, a state's decision not to subsidize abortion on the same basis as other procedures does not impose a burden on women, even when indigence "may make it difficult and in some cases, perhaps, impossible for some women to have abortions," because the law "neither created nor in any way affected" her indigent status, the appeals court said.

AMA's Harris said, "It is unconscionable that the government is telling physicians that they can treat this underserved population only if they promise not to discuss or make referrals for all treatment options."

THE LARGER TREND

The effective date of the final rule was set for May 3, 2019, but the compliance deadline for the physical separation between counseling and abortion clinics is March 4, 2020.

Planned Parenthood has already left the Title X program over the new rule, giving up about $60 million a year in federal funding, according to ABCNews.

ON THE RECORD

"The American Medical Association is disappointed by – and strongly disagrees with – the reasoning behind a federal appeals court's decision to allow the Trump administration to enforce a gag rule on physicians," Harris said. "The judges failed to properly take into consideration the AMA's legal arguments or the decision's impact on either healthcare or the patient-physician relationship."

Twitter: @SusanJMorse
Email the writer: susan.morse@himssmedia.com