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The legal battle over the Trump administration’s “domestic gag rule,” explained

The rule could make it harder for abortion providers to offer birth control.

Protesters outside of the Colorado Springs Westside Health Center February 11, 2017 in Colorado Springs, Colorado, hold signs reading “Defund Planned Parenthood” and “No $ 4 P P.”
Protesters outside of the Colorado Springs Westside Health Center February 11, 2017, in Colorado Springs, Colorado.
Marc Piscotty/Getty Images

The Trump administration in March released a final rule barring clinics that provide or refer patients for abortions from getting federal family planning funds.

The rule was soon challenged in court by state officials and reproductive rights groups and has been the subject of a legal battle ever since. Most recently, on July 3, the US Court of Appeals for the Ninth Circuit issued a preliminary injunction blocking the rule from taking effect while legal challenges work their way through the courts.

The new rule, first proposed last year, is known by some reproductive rights advocates as the “domestic gag rule.” It bars Planned Parenthood and any other provider that performs abortions or offers abortion referrals from receiving funding under Title X, which pays for birth control and other family planning services for low-income patients.

Anti-abortion groups have long backed such a rule, arguing that organizations that provide abortion should not receive federal support. But Planned Parenthood and other groups say that the rule will leave low-income patients without access to health care they need. Planned Parenthood says it sees about 41 percent of patients who get family planning services under Title X.

The rule immediately faced legal challenges from Planned Parenthood, the American Medical Association, the National Family Planning & Reproductive Health Association (NFPRHA), the American Civil Liberties Union, and a number of states. Earlier this year, the challengers won temporary injunctions keeping the rule from taking effect, but those injunctions were lifted after the Trump administration appealed. On July 3, the Ninth Circuit issued a new injunction, this one in connection with the suit by the NFPRHA and ACLU.

“Today’s ruling is an important victory in the fight against the Trump administration’s attempts to upend Title X,” said Ruth Harlow, senior staff attorney for the ACLU’s Reproductive Freedom Project, said in a statement. “It allows us to go back to court to ensure that the millions of low-income people who rely on the nation’s only family planning program will continue to receive vital health services — and we will not give up until the rule is blocked for good.”

The move to restrict Title X funds is one of a number of actions by the Trump administration that critics say will limit access to contraception and abortion. It also comes as the president ramps up his rhetoric on abortion, which he may see as a winning issue for him and the Republican Party in 2020.

The rule bars Title X recipients from performing abortions

The new rule would require providers that receive Title X funds be both physically and financially separate from any entity that provides or refers for abortions. That means that because some Planned Parenthood health centers perform abortions, all Planned Parenthood centers would be barred from getting Title X funding.

In addition to Planned Parenthood affiliates, Title X funds also go to Health Department centers, hospital-run clinics, and other facilities, all of which would be barred from performing abortions under the new rule.

Providers were already banned from using Title X money to pay for abortions, but Title X funding recipients could still perform abortions if they covered the costs with other funds.

The rule was first proposed in May 2018 but did not go into effect at that time. When it was finalized, the rule was scheduled to take effect this May.

A similar rule was proposed under President Reagan but was only in effect for a month, in 1992. That rule prohibited Title X recipients from even discussing abortion, as Julie Hirschfeld Davis and Michael D. Shear note at the New York Times, but the new rule does not go that far.

Abortion opponents have applauded the rule. “We thank President Trump for taking decisive action to disentangle taxpayers from the big abortion industry led by Planned Parenthood,” said Marjorie Dannenfelser, president of Susan B. Anthony List, in a statement.

“Americans United for Life is pleased that HHS has taken steps to stop Title X funds from subsidizing abortion,” Catherine Glenn Foster, president of the group, said in a statement.

But Planned Parenthood and other groups say it will leave many low-income patients without access to contraceptive care. Planned Parenthood also argues that the rule is illegal, since it violates laws requiring that pregnant patients receiving care through Title X get unbiased counseling about all of their options, which include abortion.

“The gag rule is unconscionable and unethical,” said Dr. Leana Wen, president of Planned Parenthood Federation of America, in a statement to media when a draft of the rule was published in February. “This rule compromises the oath that I took to serve patients and help them with making the best decision for their own health.”

In many places, Planned Parenthood is the only option for low-income patients; a 2015 analysis by the Guttmacher Institute found 103 counties where Planned Parenthood is the only provider of publicly funded contraceptives. If Planned Parenthood were locked out of Title X funds, other health centers might struggle to pick up the slack. According to another Guttmacher analysis, other providers would have to increase their caseloads by an average of 70 percent to serve all the patients currently seen by Planned Parenthood.

“If fully implemented, the proposed changes to Title X would shrink the network of participating providers and have major repercussions for low-income women across the country that rely on them for their family planning care,” wrote a team from the Kaiser Family Foundation in a November 2018 analysis of the proposed rule.

The Title X rule is just one of several moves by the Trump administration that limit access to contraception or abortion. In 2017, for instance, the administration released interim rules allowing almost any employer to get an exemption from the Obama-era requirement that employers offer contraceptive coverage as part of employee health insurance. Those rules were finalized in 2018, one day after the midterm elections.

Trump has stepped up his anti-abortion rhetoric in recent months, after Virginia Gov. Ralph Northam’s confusing comments on a bill in his state led to a larger controversy around abortions late in pregnancy. The president’s appointment of conservative Supreme Court Justices Neil Gorsuch and Brett Kavanaugh has boosted his popularity among conservatives, according to Vivian Wang of the New York Times. And with a potential challenge to Roe v. Wade on the horizon, Trump may see opposition to abortion — and to Planned Parenthood — as a winning strategy going into 2020.