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After three hours of oral arguments Tuesday, U.S. District Court Judge Michael McShane said he will issue a temporary injunction blocking the Trump regime’s domestic “gag rule” forbidding healthcare providers who refer patients for abortion services from receiving family-planning funds under Title X. Federal funding for most abortions has long been prohibited. This is the first in a number of lawsuits filed across the country challenging the rule change in the federal program that makes reproductive healthcare services a reality for low-income patients who can’t easily afford them otherwise. The wide range of family planning services funded under Title X serves some 4 million low-income people annually.
Plaintiffs had asked for a nationwide injunction. But McShane indicated he is reluctant to establish a "national health care'’ policy. We’ll have to wait to see how far this Obama-appointed judge goes when he writes his order. The U.S. Justice Department wants it to apply solely to the plaintiffs in the case. There are pending lawsuits in the matter in four other states.
McShane said the rule, which is set to go into effect May 3, represents an "arrogant assumption'' that government is better suited to direct health care instead of providers.
The judge said he will also grant a preliminary injunction to stop another Title X change, the rule forbidding federally funded family planning clinics from being housed in the same place as abortion providers. It’s long been a contention of forced-birthers that Title X funds subsidize abortion providers by housing them together in the same facilities.
The lawsuit was brought by 20 states whose attorneys argued that the gag rule attacks Planned Parenthood and violates the Affordable Care Act, which bars “unreasonable barriers to the ability of individuals to obtain appropriate medical care.” Maxine Bernstein reports:
McShane said the so-called "gag rule''—barring physicians from referring patients who don’t want to continue their pregnancies to an abortion provider—prevents doctors from behaving like medical professionals.
The judge also found that it would create a class of low-income women who couldn’t receive a full range of medical care options, foster a "geographic vacuum'' in reproductive health care clinics and likely cause an increase in abortions due to more unwanted pregnancies.
Oregon Attorney General Ellen Rosenblum told McShane during oral arguments that Title X provides a safety net for low-income people. “Put simply, she said, “this is an attempt to politicize what has been a successful, non-political public health program for 50 years.” A U.S. Justice Department attorney dared to make the laughable argument that the gag rule is not politically motivated. McShane didn’t buy it and said it would be “insane” for the physician of a man seeking a vasectomy to only be allowed to refer him to a fertility clinic.
While the gag rule will be temporarily blocked, the injunction may not hold once the higher courts get hold of the case if the feds appeal, which they almost certainly will.
One reason the injunction could be tossed is the 5-4 U.S. Supreme Court Rust v. Sullivan ruling in 1991. At Rewire, Jessica Mason Pieklo writes:
At issue in Rust were regulations issued by the Reagan administration in 1988 that prohibited Title X grantees from engaging in “counseling concerning, referrals for, and activities advocating abortion as a method of family planning,” and also required recipients to maintain “an objective integrity and independence from the prohibited abortion activities by the use of separate facilities, personnel, and accounting records.” Before the regulations could take effect, several Title X grantees and doctors who supervised Title X funds sued, arguing the changes were unconstitutional and in conflict with Title X itself. Both the lower court and the court of appeals rejected those claims. In a 5-4 decision, the Supreme Court affirmed and upheld the changes. But subsequent legal challenges kept the rules tied up in court before President Bill Clinton rescinded them in 1993.
Rust might seem like a big hurdle for the challengers to overcome. But the challengers argue this latest fight is not that similar. That’s because the Department of Health and Human Services (HHS), the agency responsible for the Title X changes, is subject to additional requirements related to abortion and health care that were not in effect during the fight over the Reagan administration’s Title X changes.
Since Rust, the Supreme Court has become even more conservative, and the challengers’ HHS claims could easily fall flat.
Ultimately, killing the gag rule probably depends on voting into office a Democratic president who will follow President Clinton’s move 26 years ago.