July 21, 2019
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Hearing set for Wednesday on injunction to block abortion ‘gag rule’

Troy R. Bennett | BDN
Troy R. Bennett | BDN
The crowd listens as Kate Brogan, vice president of public affairs at Maine Family Planning, speaks at a Planned Parenthood rally in Portland's Monument Square, Sept. 29, 2015.

A federal judge on Wednesday will consider whether rules that limit what health care providers can tell patients about accessing abortion services violate the U.S. Constitution and should be scuttled.

U.S. District Judge Lance Walker also will hear arguments on whether the plan to force the 20 clinics around the state that receive federal funding to be separated physically from other reproductive health care services would do irreparable harm to patients.

Maine Family Planning, the state’s only direct recipient of the federal Title X funds, in March sued the U.S. Department of Health and Human Services in U.S. District Court in Bangor. It is one of at least five legal actions pending in federal courts around the country seeking to keep what opponents have called a “gag rule” from going into effect May 3, said George Hill, president and CEO of Maine Family Planning.

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The Trump administration rule would prevent doctors and nurses at facilities that receive federal funding from discussing abortion with pregnant patients or referring them to abortion providers even if they ask questions about abortion services, according to the complaint.

Title X recipients that violated the rule could lose their federal funds.

That violates the “First Amendment right to freedom of speech by imposing content- and viewpoint-based government control over the speech of medical professionals,” attorneys for Maine Family Planning argued in their complaint.

The proposed rule also violates Congress’ nondirective counseling mandate, which requires that “all pregnancy counseling shall be nondirective,” Maine Family Planning argued. That means patients must be presented with information about all of their options in pregnancy, consistent with the patient’s desire to hear that information.

Attorneys for the government argued in their court filing that the rule “allows pregnancy counseling — including counseling about abortion — so long as it is nondirective.”

Government lawyers also said that the restrictions in the rule “deny nothing” but are “merely limitations on what the government funds.”

The constitutional argument is being made in cases across the country, Hill said. But Maine is the only state where the new rule is being challenged over its requirement for separate facilities for medical and surgical abortion services and other reproductive health care services.

That’s because Maine Family Planning is the only direct recipient of Title X funds in the nation that funds clinics on a statewide basis.

The $286 million federal program known as Title X was implemented in the 1970s. Supporters have said it has been pivotal for millions of low-income people in need of affordable reproductive health care. Historically, Title X facility offerings include access to birth control, testing for sexually transmitted diseases, prenatal care, abortion referrals and certain cancer screenings.

Independent abortion services are offered in the same buildings at all Maine Family Planning locations, but no Title X money is directly used to provide abortions, according to the organization. Under the new rule, these two patient offerings will have to be physically separate.

Maine Family Planning claims in its lawsuit that because of the state’s rural nature, Maine would suffer an 85 percent decrease in abortion services because the vast majority of clinics in Maine offer reproductive health care services in the same location. Clinics that did not have a separate facility for abortion services would have to stop offering them.

Lawyers for the government rejected that argument and said the government, not Maine Family Planning, would be harmed if the judge grants the injunction.

To grant the preliminary injunction, the judge must find that: the lawsuit would likely succeed on its merits, Maine Family Planning’s clients would be irreparably harmed if it is denied and it is in the public interest.

 



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