By Dave Andrusko
Back in December we reported on the question of whether the Supreme Court would take up conflicting appeals courts’ rulings over the constitutionality of the Trump administration’s “Protect Life Rule.” The rule was upheld nationwide by the Ninth Circuit, with the exception of Maryland where the Fourth Circuit blocked the rule from going into effect.
The rule requires recipients of the Title X family planning money not to co-locate with abortion clinics or refer clients for abortion as a method of family planning. It was nothing more than a restatement of the original purpose of Title X—the money is for family planning, not abortion.
Naturally, Planned Parenthood opted out rather than observe the rules. No Title X money was ever cut; it was redirected elsewhere.
Today the Supreme Court said yes—it will hear a challenge brought by, among others, the American Medical Association (AMA) and Planned Parenthood. It is uncertain when the High Court will hear oral arguments in the case but pro-abortionists (naturally) want consideration sooner rather than later.
The pro-abortion Biden/Harris administration “is reviewing the rule and the president vowed on the campaign trail to reverse it,” Jessie Hellmann reported for The Hill .While the question is not if, but when a Health and Human Services run by a pro-abortion administration will change the requirement, it would be important in the future if the Supreme Court reaffirms what it held in the 1991 Rust v. Sullivan case where the justices upheld similar regulations .
On February 24, 2020, the full 9th Circuit (“en blanc”) upheld a three judge 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.
Writing for National Review Online, Ed Whelan offered a succinct analysis of the 9th Circuit’s reasoning:
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).