July 21, 2019
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Maine judge refuses to block Trump ‘gag rule’ on abortion from taking effect

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 on Tuesday.

A federal judge in Maine on Wednesday refused to block Trump administration regulations that would limit what federally funded health care providers can tell patients about accessing abortion services and require that facilities offering abortion services be physically separated from facilities offering other reproductive health care services.

U.S. District Judge Lance Walker refused to issue a preliminary injunction to keep new rules from being implemented in Maine, setting the stage for arguments over the issue before the U.S. Supreme Court during its next term.

Maine Family Planning and the national Center for Reproductive Rights said that Walker’s decision and the Trump administration’s rules would jeopardize Maine Family Planning’s clinics, which provide reproductive health care services to low-income and rural communities.

“With this ruling, 85 percent of abortion clinics in the state of Maine are in jeopardy,” the organization said of Walker’s decision.

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. The suit became 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.

Walker heard oral arguments on the motion for an injunction in April. Before he could rule, U.S. District Judge Stanley Bastian in Yakima, Washington, granted a preliminary injunction in response to lawsuits from the state of Washington and the National Family Planning and Reproductive Health Association, among others. The order was nationwide in scope, barring the U.S. Department of Health and Human Services from implementing the administration’s rule entirely and preserving the status quo.

The Washington ruling put the action in Maine on hold. But on June 21, it was revived after a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco overruled the federal judge in Washington and other western states. That panel called the rules “reasonable” and allowed them to take effect.

Walker, who was appointed by President Donald Trump and confirmed by the Senate last year, said that requiring a physical separation between reproductive health care clinics and abortion clinics “is a rational way to administer the Title X federal spending program, given the prohibition against utilization of program funds in programs that offer abortion as a method of family planning.”

The judge concluded that patients who found family planning clinics also could find abortion services.

“While neither Title X program providers nor their support staff can direct abortion traffic to abortion providers, it would seem likely that the patient would be able to find her way to available abortion services (including at another Maine Family Planning location), much in the same way that she likely first accessed Maine Family Planning’s Title X program,” Walker said. “This could be by means of the Internet, including a webpage maintained by Maine Family Planning that is not affiliated with the Title X program, or it could be by means of state or local public health announcements, third-party information campaigns, or word-of-mouth.”

In addition, Walker said that Maine Family Planning had not shown that it was likely to succeed on the merits of the case — the legal requirement for issuing a preliminary injunction.

“Instead, the court simply concludes — on a preliminary and non-final basis — that plaintiffs have failed to meet the burden required by law for preliminary injunctive relief to issue,” Walker wrote in the 61-page decision. It isn’t the role of a federal judge to assess “the wisdom of public policy as the Oracle of Delphi heroically saving the republic from the product of its own democratic process,” Walker wrote. “The exercise of sound judicial review must be hallmarked by restraint.”

Attorneys with the Department of Justice in Washington, D.C. represented DHHS. It is the practice of its attorneys not to comment on pending litigation.

 



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