July 21, 2019
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Judge will decide soon on blocking Trump administration abortion ‘gag rule’

Gabor Degre | BDN
Gabor Degre | BDN
Emily Nestler, attorney for Maine Family Planning, and George Hill, president and CEO of Maine Family Planning, talk to reporters outside the federal building in Bangor on Wednesday after a hearing on a motion requesting a preliminary injunction to stop a Trump administration rule that would limit what heath care providers can tell pregnant patients about abortion services.

A federal judge Wednesday did not say how he would rule on a challenge to Trump administration regulations that would limit what federally funded health care providers can tell patients about accessing abortion services. But during a hearing on the challenge in federal court in Bangor, U.S. District Judge Lance Walker said he would decide soon.

Attorneys for Maine Family Planning, the state’s only direct recipient of the federal Title X funds, are seeking an injunction that would block the rule from taking effect as scheduled on May 3. The more than two-hour hearing before Walker came the morning after a federal judge in Oregon considering a separate but similar legal challenge against the rule said he would grant a preliminary injunction blocking it.

Walker on Wednesday questioned attorneys on both sides.

Many of his questions focused on whether the rule that requires separate facilities for reproductive health care services and abortion services would force clinics that receive Title X funds to close, which would force some patients to travel more than 100 miles to access those services.

Attorneys for Maine Family Planning said they have presented ample evidence that the rule, if implemented, would place an undue burden on its clients and deny access to health care for thousands of Maine women.

Emily Nestler of the Center for Reproductive Rights in Washington, D.C., who argued for the injunction, said outside the courthouse after the hearing that the U.S. Department of Health and Human Services ignored evidence of how drastically the rule would impact reproductive and health care services in rural states such as Maine.

“DHHS was aware of all of this information,” Nestler said. “They chose to completley disregard it, they chose to not engage with it at all and to issue this rule, which is clearly a political move to undermine abortion providers.”

George Hill, president and CEO of Maine Family Planning, estimated that if it refused to accept Title X funding, 17 of its 18 clinics would have to close and between 4,000 and 8,000 Maine women would be left without reproductive health care providers.

Walker also pressed attorneys for Maine Family Planning on why they did not see the political winds shifting on the issue of Title X funding and better prepare for the changes.

Nestler replied that the current rules have been in place since the Clinton administration and stayed in place during Republican George W. Bush’s two terms as president.

“It is unreasonable to expect Maine Family Planning, which has been providing these services for decades, to guess when the rules were going to change,” she said.

Department of Justice attorneys, who left the courthouse without speaking to reporters, countered before Walker that the rule is about how federal funds are used, not about limiting access to abortion or reproductive health care. The U.S. Department of Health and Human Services expects that other providers would step in to fill the gap or Maine Family Planning would find funding elsewhere.

Attorneys for the administration said in their brief that granting the injunction “would thwart lawful regulations intended to avoid any risk or perception that federal funds will be used to subsidize abortion, an unquestionably irreparable injury to the government and the public.”
“The need to avoid that harm significantly outweighs any of plaintiff’s asserted injuries,” the brief said. “[Maine Family Planning] simply desire[s] to receive government subsidies on the terms that they prefer.”

The attorneys argued that the U.S. Supreme Court previously ruled that the government may “make a value judgment favoring childbirth over abortion, and implement that judgment by the allocation of public funds.”

Federal law prohibits federal funds from being used to perform abortions. Title X funds pay for family planning and other preventive health care services for low-income and uninsured people.

Maine Family Planning in March sued the U.S. Department of Health and Human Services in U.S. District Court in Bangor.

It is one of a handful of legal actions pending in federal courts around the country seeking to keep what opponents have called a “gag rule” from going into effect, according to George Hill, president and CEO of Maine Family Planning.

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.

The plan also would require that abortion services be separated physically from other reproductive health care services — a provision referred to as the “separation” rule.

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

In Oregon on Tuesday, U.S. District Judge Michael J. McShane said he would grant an injunction in a similar legal challenge to the restrictions.

McShane called the so-called “gag rule” a “ham-fisted approach to public health policy.”

Oregon joined with 19 other states, Washington, D.C., Planned Parenthood affiliates and the American Medical Association to file the legal challenge in U.S. District Court in Oregon.

McShane also announced that he will issue a preliminary injunction to block the “separation” rule.

If Walker or other federal judges refuse to issue injunctions, the U.S. Supreme Court most likely would have to settle the issue.

The U.S. Senate unanimously confirmed Walker in October after President Donald Trump nominated him to the federal bench in April 2018.

In December, Walker rejected a challenge to the constitutionality of ranked-choice voting launched by former U.S. Rep. Bruce Poliquin following his loss to Democrat Jared Golden.

 

Correction: A previous version of this story misidentified Emily Nestler in a photo caption.


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