Fourth Circuit blocks Trump admin. rule banning abortion clinics from receiving Title X funding

By Samuel Smith, Deputy Managing Editor Saturday, April 04, 2020

The U.S. Fourth Circuit Court of Appeals rejected the Trump administration’s motion to stay a federal judge’s order blocking a new rule that bans Planned Parenthood and other clinics that receive Title X family planning funding from referring patients for or providing abortions.

The Fourth Circuit denied the administration’s motion to stay an injunction issued in February by Judge Richard D. Bennett blocking the Department of Health and Human Services’ “Protect Life” rule finalized last year from being enforced in the state of Maryland. 

“I am convinced this case presents an extraordinary circumstance,” Judge Stephanie Thacker, an Obama appointee, wrote in a concurring opinion.

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“The final agency rule at issue here has forced Planned Parenthood, Baltimore, and numerous states to withdraw from the Title X program. The short-term nature of pregnancy, the brief window for obtaining a legal abortion, and the imminent harm to the city of Baltimore and its resident’s counsel in favor of expedited, initial en banc consideration.” 

The Title X family planning program, which was enacted during the Nixon administration, gives up to $286 million per year to health clinics across the country to provide services such as cancer screenings and STD testing as well as provide contraceptives to low-income patients. Planned Parenthood does not offer many health screenings, such as mammograms, despite claiming for many decades that it did.

The new rule demands: “clear financial and physical separation between Title X funded projects and programs or facilities where abortion is a method of family planning.”

“This separation will ensure adherence to statutory restrictions, and provide needed clarity for the public and for Title X clinics about permissible and impermissible activities for Title X projects,” a release from HHS explains. 

Planned Parenthood, the country’s largest abortion business, served about 40 percent of Title X patients and was the largest provider of Title X care in the U.S. 

But last August, Planned Parenthood exited from the Title X program rather than make changes to comply with the Protect Life Rule. The abortion provider vowed to fight the new rule legally. 

Circuit Judge Jay Richardson, a Trump appointee, dissented from the Fourth Circuit’s majority opinion. 

“After taking the case from the assigned panel, the en banc court then denies the government’s motion for a stay of the district court’s order. That order enjoined an agency rule that amended regulations governing federal grants for preconception family-planning programs,” he wrote.  “The agency’s amendments essentially returned those regulations to the version that the Supreme Court blessed in Rust v. Sullivan.”

“Even so, the district court found some of the rule’s provisions to be ‘arbitrary and capricious.’ Having found some provisions improper, the court enjoined enforcement of the entire rule,” Richardson continued. “And it did so for the whole state of Maryland, even though only the city of Baltimore sued. I would grant the motion for a stay, particularly as the district court’s injunction applies to provisions never held to be unlawful and is geographically broader than necessary.”

The Fourth Circuit’s ruling comes after a three-judge panel on 9th Circut in February ruled in favor of the new HHS policy and allowed it to take effect across the majority of the country.

The Ninth Circuit vacated multiple district court injunctions against the rule and sent those cases back to the lower courts for proceedings “consistent” with the opinion.

But the rule is now blocked in Maryland until the merits of the legal challenge are settled. 

A circuit-court split increases the chances that the U.S. Supreme Court may review the issue. 

Under the new rule finalized last year, organizations that provide abortions must separate abortion operations from clinics that will receive Title X family planning funding. 

Although Planned Parenthood has seemingly blamed the Trump administration for pushing it out of the Title X program, the Justice Department has previously pushed back against that narrative.

“[T]he Rule merely requires grantees to refrain from providing referrals for abortions,” Justice Department attorney Jaynie Lilley sent in a letter to the Ninth Circuit last year. “If the seven Planned Parenthood direct grantees insist on providing abortion referrals even within a federally funded program, and feel so strongly that they would withdraw from the program and the public they serve, that is their own choice, not a consequence of the Rule.”