The 9th Circuit reverses an injunction against Trump's ban on using federal funds for abortions

In June 2019, the Trump administration's Department of Health and Human Services ("HHS") announced that, effective immediately, medical clinics receiving federal funding could no longer refer women to abortions ("the Final Rule).  The Final Rule also mandated that abortions had to be performed in facilities that were physically and economically separate from the Title X clinics.

If the clinics refused to abide by the new mandates, they would lose their funding under Title X, a Nixon-era program providing funds for family planning and health services.  Rather than abide by the edict, Planned Parenthood withdrew from the Title X program, foregoing the $60 million a year that taxpayers gave to an organization that performed almost 330,000 abortions just during the 2017–2018 fiscal year.

On Monday, the Ninth Circuit Court of Appeals, once of the wackiest courts in the entire federal system, did something remarkable: it supported the Trump administration.  In a majority opinion that Judge Sandra Ikuta, a George W. Bush appointee, authored, it reversed several lower-court rulings that had imposed nationwide preliminary injunctions against the Final Rule. 

Judge Ikuta, appropriately, began her discussion with the law.  The abortion issue is covered by 42 USC §300a-6 (known as §1008), which has never been amended since Title X's enactment in 1970:

None of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.

The legislative history emphasized that the statute is intended only to provide for birth control, infertility services, and research, not abortion.  Nevertheless, over the years, Health and Human Services issued a wide variety of directives that sort of opened and then sort of closed the door to abortion:

Thus, before the 2018 rulemaking, HHS's interpretations of § 1008 had seesawed through multiple formulations: from permitting — then requiring — nondirective counseling on abortion as a method of family planning (in 1971 and 1981 guidance documents); to prohibiting counseling and referrals for abortion as a method of family planning (in the 1988 Rule, upheld by the Supreme Court in 1991); and then to once again requiring nondirective counseling and referrals for abortion on request (in the 2000 Rule). HHS also vacillated in its interpretation of the federal conscience laws. This uncertain history was the backdrop for HHS's reconsideration of this controversial area in 2018. (State of California v. Azar, et al., (February 24, 2020) Ninth Cir., Case No. 19-15974, pp. 19–20.)

And that's where matters stood when the Trump administration stepped in and reinstated the 1988 rules that the Supreme Court had upheld.  Significantly, the 1988 rules not only prohibited abortion referrals, but included language saying abortion facilities had to be completely separate from Title X clinics, both physically and financially.

Several states and clinics receiving Title X monies immediately filed suit, saying that returning to the directives that the Supreme Court had approved was "arbitrary and capricious, contrary to law, and in excess of statutory authority" (State of California, p. 27).  All three district courts (in Washington, Oregon, and California) issued nationwide injunctions against the Final Rule — as was to be expected of cases filed in the Ninth Circuit.

It was in this context that the Ninth Circuit — which now has a critical mass of strict constructionist, rather than activist, judges — held that there was nothing untoward in reinstating guidelines that the Supreme Court had long ago concluded were consistent with both the law as written and the Constitution.  The Ninth Circuit, therefore, reversed the preliminary injunctions and remanded the cases for proceedings consistent with the appellate court's findings:

We hold that the Final Rule is a reasonable interpretation of § 1008, it does not conflict with the 1996 appropriations rider or other aspects of Title X, and its implementation of the limits on what Title X funds can support does not implicate the restrictions found in § 1554 of the ACA. Moreover, the Final Rule is not arbitrary and capricious because HHS properly examined the relevant considerations and gave reasonable explanations. See Elec. Power Supply Ass'n, 136 S. Ct. at 782. Plaintiffs will not prevail on the merits of their legal claims, so they are not entitled to the "extraordinary remedy" of a preliminary injunction. (State of California, p. 81.)

Those findings are so comprehensive that they are basically an order that the plaintiffs' cases be dismissed.

The reality is that the bulk of the Title X money was going to Planned Parenthood, the nation's largest abortion provider.  Had Title X money really been about family planning and women's health, Democrats would readily have supported its going to clinics other than Planned Parenthood.  Planned Parenthood's pre-eminence in the Title X arena, plus its annual 330,000 or so abortions, showed that this fight was always about getting federal funds to pay for abortions.

Incidentally, despite walking away from those Title X dollars, Planned Parenthood announced in October that it planned to spend at least $45 million to get pro-abortion people elected in 2020.  This announcement left many to wonder why, with that kind of cash lying around, it was sucking up taxpayer money in the first place.

In June 2019, the Trump administration's Department of Health and Human Services ("HHS") announced that, effective immediately, medical clinics receiving federal funding could no longer refer women to abortions ("the Final Rule).  The Final Rule also mandated that abortions had to be performed in facilities that were physically and economically separate from the Title X clinics.

If the clinics refused to abide by the new mandates, they would lose their funding under Title X, a Nixon-era program providing funds for family planning and health services.  Rather than abide by the edict, Planned Parenthood withdrew from the Title X program, foregoing the $60 million a year that taxpayers gave to an organization that performed almost 330,000 abortions just during the 2017–2018 fiscal year.

On Monday, the Ninth Circuit Court of Appeals, once of the wackiest courts in the entire federal system, did something remarkable: it supported the Trump administration.  In a majority opinion that Judge Sandra Ikuta, a George W. Bush appointee, authored, it reversed several lower-court rulings that had imposed nationwide preliminary injunctions against the Final Rule. 

Judge Ikuta, appropriately, began her discussion with the law.  The abortion issue is covered by 42 USC §300a-6 (known as §1008), which has never been amended since Title X's enactment in 1970:

None of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.

The legislative history emphasized that the statute is intended only to provide for birth control, infertility services, and research, not abortion.  Nevertheless, over the years, Health and Human Services issued a wide variety of directives that sort of opened and then sort of closed the door to abortion:

Thus, before the 2018 rulemaking, HHS's interpretations of § 1008 had seesawed through multiple formulations: from permitting — then requiring — nondirective counseling on abortion as a method of family planning (in 1971 and 1981 guidance documents); to prohibiting counseling and referrals for abortion as a method of family planning (in the 1988 Rule, upheld by the Supreme Court in 1991); and then to once again requiring nondirective counseling and referrals for abortion on request (in the 2000 Rule). HHS also vacillated in its interpretation of the federal conscience laws. This uncertain history was the backdrop for HHS's reconsideration of this controversial area in 2018. (State of California v. Azar, et al., (February 24, 2020) Ninth Cir., Case No. 19-15974, pp. 19–20.)

And that's where matters stood when the Trump administration stepped in and reinstated the 1988 rules that the Supreme Court had upheld.  Significantly, the 1988 rules not only prohibited abortion referrals, but included language saying abortion facilities had to be completely separate from Title X clinics, both physically and financially.

Several states and clinics receiving Title X monies immediately filed suit, saying that returning to the directives that the Supreme Court had approved was "arbitrary and capricious, contrary to law, and in excess of statutory authority" (State of California, p. 27).  All three district courts (in Washington, Oregon, and California) issued nationwide injunctions against the Final Rule — as was to be expected of cases filed in the Ninth Circuit.

It was in this context that the Ninth Circuit — which now has a critical mass of strict constructionist, rather than activist, judges — held that there was nothing untoward in reinstating guidelines that the Supreme Court had long ago concluded were consistent with both the law as written and the Constitution.  The Ninth Circuit, therefore, reversed the preliminary injunctions and remanded the cases for proceedings consistent with the appellate court's findings:

We hold that the Final Rule is a reasonable interpretation of § 1008, it does not conflict with the 1996 appropriations rider or other aspects of Title X, and its implementation of the limits on what Title X funds can support does not implicate the restrictions found in § 1554 of the ACA. Moreover, the Final Rule is not arbitrary and capricious because HHS properly examined the relevant considerations and gave reasonable explanations. See Elec. Power Supply Ass'n, 136 S. Ct. at 782. Plaintiffs will not prevail on the merits of their legal claims, so they are not entitled to the "extraordinary remedy" of a preliminary injunction. (State of California, p. 81.)

Those findings are so comprehensive that they are basically an order that the plaintiffs' cases be dismissed.

The reality is that the bulk of the Title X money was going to Planned Parenthood, the nation's largest abortion provider.  Had Title X money really been about family planning and women's health, Democrats would readily have supported its going to clinics other than Planned Parenthood.  Planned Parenthood's pre-eminence in the Title X arena, plus its annual 330,000 or so abortions, showed that this fight was always about getting federal funds to pay for abortions.

Incidentally, despite walking away from those Title X dollars, Planned Parenthood announced in October that it planned to spend at least $45 million to get pro-abortion people elected in 2020.  This announcement left many to wonder why, with that kind of cash lying around, it was sucking up taxpayer money in the first place.