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Abortion: US appeal court upholds Trump’s “gag rule” that stops doctors from facilitating provision

BMJ 2020; 368 doi: https://doi.org/10.1136/bmj.m762 (Published 26 February 2020) Cite this as: BMJ 2020;368:m762
  1. Owen Dyer
  1. Montreal

A US federal appeal court has upheld a Trump administration rule that forbids doctors who provide federally funded reproductive health services from recommending abortion providers or referring patients to them.

An 11 judge panel of the US Ninth Circuit was split along party lines, as seven Republican appointed judges voted on the administration’s side and four judges appointed by Democrat presidents dissented.1

The ruling affects clinics that accept Title X (“Title 10”) funding, named after a federal programme that provides about $280m (£216m; €257m) in reproductive health services each year, mostly to women on low incomes.

Title X clinics have never been permitted to provide abortions, but since 2000 their doctors have been allowed to give a neutral presentation on the subject and to make referrals to abortion clinics that do not receive Title X money. The new Trump administration rule takes away their right to refer for abortions.

The rule also requires that every pregnant patient be referred for prenatal care. And it stipulates that any clinic running a legally separate business outside Title X that provides abortion services must make it physically separate, in different premises and with a separate records system.

Continued fight

Except for the separate premises requirement, the new rule has already been in force around the US since last June, when a smaller panel of the Ninth Circuit upheld it, overturning decisions by two lower courts.

Planned Parenthood, the largest provider of reproductive healthcare to low income women in the US, pulled out of the Title X programme last August because of the new rules.2 It joined the American Medical Association and 22 states in contesting a new interpretation of existing law by the Trump administration.3

Patrice Harris, president of the American Medical Association, said that her organisation strongly disagreed with the appeal court’s ruling. “It is unconscionable that the government is telling physicians that they can treat this underserved population only if they promise not to discuss or make referrals for all treatment options,” she said.

She hinted at a further appeal, to the Supreme Court. “As this case moves to the next stage, we’ll continue to fight for open conversations between patients and physicians—the cornerstone of quality healthcare,” she said.

Meanwhile, legislatures in several Democrat run states are debating measures to replace the federal Title X funding in their own budgets. Next week the Supreme Court will hear a much anticipated case pitting Louisiana against its three remaining abortion clinics. The clinics seek to overturn a state law requiring that their doctors have admitting privileges at nearby hospitals. Such laws—increasingly common in states with Republican majorities—have been portrayed by critics as attempts to shut down clinics without directly challenging the right to abortion enshrined in Roe v Wade. Louisiana’s law was stayed by a lower court.4

Kathaleen Pittman, administrator of one of the three Louisiana clinics, the Hope Medical Group for Women, noted in a statement that the Supreme Court had already struck down a similar law from Texas in 2016. But two more conservative justices have been appointed since then.

“The facts have not changed,” said Pittman. “The make-up of the court has. It is not an understatement to say the integrity of the Supreme Court is at stake.”

References

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