‘Gag Rule’ Is Blocked by Court : Ruling: Short-lived ban on abortion advice appears doomed as Bush Administration loses election.

In an Election Day ruling that may doom the controversial “gag rule,” which bars federally funded clinics from advising women about abortion, a federal appeals court here blocked further enforcement of the regulation because the Bush Administration failed to seek public comment on the policy.

The decision means that the rule cannot be enforced until the Administration conducts a “notice and comment” period, which could take months.

But by then, the Bush Administration will be history. Throughout the presidential campaign, Democrat Bill Clinton has said that, if elected, he would drop the rule, which has been harshly criticized by women’s rights and medical groups.

Under the regulation, counselors in federally funded family planning clinics are barred from discussing abortion with their pregnant patients or referring them to doctors who perform abortions.

Administration officials said that the rules prevent counselors from promoting and encouraging abortion. Clinic directors say that it prevents them from telling patients the full truth about their medical options.

The rule survived a series of bruising battles in Congress and in the Supreme Court before finally going into effect Oct. 1.

However, the appeals court, on a 3-0 vote, said that the Administration acted illegally last November when it modified the regulation without first seeking public comment on the change. The lawsuit had been brought by the National Family Planning and Reproductive Health Assn.

“The gag rule is history, along with those who proposed it,” said a jubilant David J. Andrews, acting president of the Planned Parenthood Federation of America.

The National Right to Life Committee, which strongly supported the clinic regulations, called the appeals court decision “a politically timed ruling.”

All three judges on the appeals court panel were appointed by former President Jimmy Carter. They are considered the three most liberal judges on the 12-member court.

“If Clinton wins, we’ll see a lot more of this: liberal judges engaging in social engineering,” said Douglas Johnson, legislative director for the Right to Life Committee.

About 4,000 clinics nationwide receive federal funding. They serve 3.7 million women each year and offer physical exams, contraceptives and pregnancy tests.

Thomas C. Kring, executive director of the California Family Planning Council, said that after hearing of the decision he immediately relayed word to the state’s 220 federally funded clinics and advised them to return to business as usual in pregnancy counseling.

Ironically, the court ruling stemmed from changes that the Bush Administration made in an attempt to quell controversy over the rule. Last November, President Bush announced that the regulation would be modified so that doctors could offer patients “complete medical information.

“Under my directive, they can go ahead--patients and doctors can talk about absolutely anything they want,” Bush said at a press conference.

Officials of the Department of Health and Human Services noted, however, that the new regulation still barred counselors and nurses from discussing abortion with patients. Clinic directors, however, said that counselors and nurses do most patient counseling.

Justice Department lawyers refused to say whether they would appeal the decision. Last year, in a 5-4 decision, the Supreme Court upheld the regulations against a far broader challenge.

Justice Department lawyers maintained that the President’s directive did not amount to a new regulation and therefore did not trigger a requirement for further public comment.

But U.S. District Judge Charles Richey sided with the family planning directors last month and blocked further enforcement of the law. In a 27-page opinion filed Tuesday, the appeals court upheld that decision and extended the order blocking enforcement of the rules.

“The new policies encompassed in the directives may not be enforced until and unless they are adopted in a notice and comment rule-making,” said Judge Patricia Wald.

Since the gag rule was implemented Oct. 1, clinics in California have adhered to a complicated accounting system to separate federal monies from those paying for pregnancy counseling services. The system, which other states quickly adopted, put the clinics in technical compliance with the gag rule while permitting them to continue counseling women about their option to end a pregnancy.

It was, nevertheless, a cumbersome evasion, and not all family planning professionals believed that it would withstand federal scrutiny.

“I think all of us in California were very concerned that the administrative strategy we were using . . . might not work,” said Beth Calleton, executive director of Pasadena Planned Parenthood.

Times staff writer Irene Wielawski in Los Angeles contributed to this story.