By Dave Andrusko
On Tuesday another federal judge turned down another challenge to the Trump Administration’s “Protect Life Rule” which requires recipients of Title X family planning money not to co-locate with abortion clinics or refer clients for abortion as a method of family planning. Planned Parenthood opted out of the Title X program rather than accept the limitations which were clearly intended by Congress when it created the program in 1970.
In March 2019, Maine Family Planning sued the U.S. Department of Health and Human Services, arguing the rule violated the free speech clause of the 1st Amendment, a common tactic.
U.S. District Judge Lance Walker disagreed. Last July he refused to issue an injunction. Yesterday Judge Walker allowed the rule to remain in place.
As NRL News Today reported, in June 2019, a three-judge panel of the notoriously pro-abortion 9th Circuit upheld the Protect Life Rule. Then, last February, the full 9th Circuit (“en blanc”) upheld the panel’s decision.
The 7-4 decision in California v. Azar vacated court decisions in California, Oregon, and Washington that had blocked the rule’s enforcement. “Congress has long prohibited the use of Title X funds in programs where abortion is a method of family planning and HHS’s recent rule makes that longstanding prohibition a reality,” Mollie Timmons, a Department of Justice spokesperson, said at the time. “We look forward to continuing to defend this vital rule against all challenges.”
Ed Whelan, in a very succinct post, summarized the 9th Circuit’s holding in California v. Azar:
In her majority opinion, Judge Ikuta explains that the Title X regulations are similar to those upheld by the Supreme Court in Rust v. Sullivan in 1991, and that they are in fact “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 therefore “is no ‘gag’ on abortion counseling” (even if one were to adopt the dubious position that a refusal to provide funding amounts to a “gag”).
Ikuta rejects arguments that two intervening congressional enactments render Rust’s holding no longer valid (pp. 32-48) and that the regulations are inconsistent with a provision in the so-called Affordable Care Act (pp. 49-58). She also rejects administrative-law claims that the Title X regulations are in various respects arbitrary and capricious (pp. 59-81).
Judy Harrison, reporting for the Maine Bangor Daily News, wrote
When the lawsuit was filed, Maine Family Planning President and CEO George Hill said that would force the nearly 20 Title X facilities around the state to “eliminate” on-site abortion services, leaving Maine with just three publicly accessible abortion providers.
In March 2019, Maine Family Planning’s annual operating budget was between $7.5 million and $8 million. It received a little more than $2 million in Title X money each year, which was disbursed to its 18 owner-operated health care centers across the state. Lesser amounts were earmarked for partner groups, such as Planned Parenthood.
Title X recipients that violated the rule could lose their federal funds. Maine Family Planning last year said it would operate without Title X funds by seeking more donations and using its reserve funds. [Underlining added.]