“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
In the continuation of a case from July 2019, two Trump 9th Circuit judges—Eric Miller and Kenneth Lee—cast key votes in a 7-4 en banc decision that upholds the controversial Trump administration domestic gag rule that restricts federally-funded health clinics from discussing abortion with their patients. The rule also requires providers to steer women toward childbirth, and to physically and financially separate any abortion services from all other healthcare services. The July opinion, handed down by the same en banc panel, had kept the rule in effect pending this final ruling on the merits. The new February 2020 decision is California v. Azar.
In March 2019, the Trump administration released the new rule, which limits health care access for the millions of Americans who are served by Title X, who are disproportionately low-income, people of color, immigrants, LGBTQ+ people, people living with disabilities or who face other barriers to care. More than 20 states and several family planning groups filed suit, explaining that the gag rule would improperly censor doctors from freely talking with patients and deny Title X patients the information they need to make sound health decisions. Three lower courts in California, Oregon, and Washington had issued injunctions against the gag rule, and the case was appealed to the Ninth Circuit.
Judge Richard Paez dissented, joined by Judges Sidney Thomas, Kim McLane Wardlaw, and William Fletcher. He pointed out that Congress created Title X to ensure that family planning services are “readily available to all persons desiring such services.” In addition, the gag rule is inconsistent with the congressional requirement that health care providers who receive Title X funds inform pregnant patients of their options without advocating one choice over another. Furthermore, Congress has specifically barred the Department of Health and Human Services from adopting regulations that burden patients’ access to health care, interfere with communications between patients and their health care providers, or delay patients’ access to care.
Judge Paez explained:
Three separate district courts in well-reasoned opinions recognized that the Rule breaches Congress’s limitations on the scope of HHS’s authority and enjoined enforcement of the Rule. In vacating the district courts’ preliminary injunctions, the majority sanctions the agency’s gross overreach and puts its own policy preferences before the law. Women and their families will suffer for it. I strongly dissent.
Pointing out that the majority is “hauling the paternalism of the past into the present,” the dissent observed:
The majority would return us to an older world, one in which a government bureaucrat could restrict a medical professional from informing a patient of the full range of health care options available to her. Fortunately, Congress has ensured such federal intrusion is no longer the law of the land.
Indeed, Congress has so acted. But with Donald Trump’s judges creating a majority, the en banc ruling stripped this congressional protection from residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. As reported in this blog, Trump judges also voted in 2019 to put the gag rule into effect in Baltimore despite a preliminary injunction against it in a lower court. In fact, Planned Parenthood has withdrawn from the Title X program altogether because of the restrictions imposed, further harming program recipients.
Had the vacancies filled by Eric Miller and Kenneth Lee instead been filled by a president seeking fair-minded constitutionalists for the bench, the result could very well have been different, with a 6-5 majority recognizing that the gag rule is unlawful.