A divided 9th Circuit could uphold Trump’s new abortion referral rule


A federal appeals court appeared divided along party lines Monday on whether to uphold a new Trump administration rule that denies federal family planning money to clinics that refer patients for abortions.

During a hearing in San Francisco, an 11-judge panel of the U.S. 9th Circuit Court of Appeals considered whether to reinstate preliminary injunctions issued by three district judges against the new rule.

Seven of the judges chosen randomly for the panel are Republican appointees, including two new judges Trump placed on the court. Four of the judges were appointed by Democrats.


Judges appointed by Democrats appeared skeptical of the government’s arguments. Judges appointed by Republicans asked questions that helped the government’s case.

Family planning organizations, the American Medical Assn., 22 states including California, and the District of Columbia, have challenged the rule.

It established new requirements for funds distributed under Title X, a 1970 federal law intended to help poor women and those in isolated, rural settings obtain family planning services.

In addition to banning abortion referrals, the administration’s rule requires recipients of the funds to refer pregnant women for prenatal care, even if the patients want abortions.

Recipients also must encourage patients to discuss their situations with their families and to tell single women about the benefits of abstinence.

Opponents of the rule told the 9th Circuit that it violates a congressional rider that says all counseling must be neutral. Requiring referrals for prenatal care but banning them for abortion favors one option over the other, the challengers argued.


Since the rule went into effect this summer, 20% of 80 organizations have left the program, saying they could not comply.

More than 500 Title X service sites no longer are in the program, and Planned Parenthood, which served 40% of the Title X patients in 2017, has stopped participating, Ruth Harlow, senior staff attorney at the American Civil Liberties Union’s Reproductive Freedom Project, told the court.

She said several states have dropped out of the program, and there are now gaps in services in 28 states.

Brinton Lucas, arguing for the Trump administration, insisted “the concerns about harm have been somewhat overblown.”

He said states and private donations are going to make up the shortfall in many cases, and he characterized the 20% dropout rate as relatively small. The dropout rate doesn’t mean all “the doors will be shuttered,” he said.

Judge Consuelo M. Callahan, appointed by President George W. Bush, said that if the court ruled against the administration, it would suffer a hardship too.

“Isn’t it a hardship to the government if they can’t implement a program that is constitutional?” she asked.

She added that new administrations often change policies from those held by their predecessors and that the new rule has an exception on abortion referrals when the life of the mother is clearly at risk.

Judge Richard Paez, a Clinton appointee, said it just makes “common sense” that if a doctor counsels a patient about an option, he or she should be able to refer the patient to someone who can help the patient obtain the chosen care.

More than 4 million people in the U.S., 1 million of them in California, rely on Title X funding to obtain contraception, cervical and breast cancer screenings and testing and treatment for sexually transmitted diseases.

The program received about $286.5 million this year, including about $60 million slated for Planned Parenthood.

A 9th Circuit panel of three Republican appointees decided in June to lift the preliminary injunctions issued by district judges.

The challengers asked a larger, en banc panel to overturn that decision. The seven Republican appointees on the panel refused to reinstate the injunction. The four Democrats dissented.

In California, many agencies have left the program, resulting in a nearly 40% reduction in patients served by Title X in the state, according to Essential Access Health, which administers the program.