9th Circuit hears challenge to Trump Administrations Title X rules

By Dave Andrusko

Described as “divided” by the Los Angeles Times, an 11-member panel of the 9th Circuit Court of Appeals on Monday heard challenges to and a defense of the Trump Administration’s “Protect Life Rule.” The rule restores Title X family planning regulations that prohibit grantees from co-locating with abortion clinics, or from referring clients for abortion.

Of the $287 million Title X program, Planned Parenthood is the beneficiary of around $50 to $60 million. Planned Parenthood pulled out of the Title X program rather than agree.

As NRL News Today reported, three lower courts– in California, Oregon and Washington state– temporarily blocked the rule before it could take effect in May. However, on June 20 a three-judge panel of the 9th Circuit — U.S. Circuit Judges Edward Leavy, Consuelo Callahan, and Carlos Bea– allowed the Trump administration’s family planning rules to go into effect.

The commonsense core of the unanimous decision is that because the Supreme Court upheld similar Reagan-era rules almost 30 years ago, the Trump administration would likely prevail. “Absent a stay, HHS will be forced to allow taxpayer dollars to be spent in a manner that it has concluded violates the law, as well as the Government’s important policy interest in ensuring that taxpayer dollars do not go to fund or subsidize abortions,” the judges wrote .“As the Supreme Court held in Rust, ‘the government may ‘make a value judgment favoring childbirth over abortion, and . . .implement that judgment by the allocation of public funds and by ‘declining to ‘promote or encourage abortion’.”

The judges also noted, “To find that the Final Rule’s enactment was arbitrary and capricious, the district courts generally ignored HHS’s explanations, reasoning, and predictions whenever they disagreed with the policy conclusions that flowed there from.”

On July 11, the 9th Circuit rejected emergency bids to temporarily set aside the June 20 decision.

In an otherwise tilted story in Courthouse News, Maria Dinzeo did acknowledge, “The 2019 rules largely restore regulations from the Reagan administration in 1988, which were upheld in 1991 by the U.S. Supreme Court in Rust v. Sullivan.”

The core of the opposition was that many groups have chosen to leave the Title X program, according to Ruth Harlow, senior staff attorney at the American Civil Liberties Union’s Reproductive Freedom Project, and that the new rules are more restrictive than the old.

Among other arguments, the government countered that the new rules are less restrictive.

Dinzeo reported that Judge Milan Smith said he was

“troubled’ by the plaintiffs’ position since the Supreme Court’s decision in Rust upheld prohibitions on abortion counseling. “Why would we be free to make a different conclusion?” Milan asked Harlow.

“We’re not saying you should disregard Rust,” Harlow said. But she said the decision was still arbitrary and capricious.