Bench Memos

Law & the Courts

Ninth Circuit Allows HHS Title X Regulations to Take Effect

Title X of the Public Health Service Act authorizes the Department of Health and Human Services to make grants to support voluntary family planning but prohibits grant funds from being used in “programs where abortion is a method of family planning.” In an important victory for the Trump administration—and a big defeat for Planned Parenthood—the Ninth Circuit ruled today (in California v. Azar) that the HHS’s regulations implementing Title X are lawful.

The Ninth Circuit divided 7 to 4 along ideological lines (or at least along lines of party of appointing president). Judge Sandra Ikuta penned the majority opinion and was joined by Judges Leavy, Bybee, Callahan, M. Smith, Miller, and Lee. (The latter two are Trump appointees.) Judge Richard Paez wrote the dissent, joined by Chief Judge Thomas and Judges Wardlaw and Fletcher.

The Chief Judge is automatically on every limited en banc panel. The fact that seven of the other ten judges drawn to be on the panel were appointed by Republican presidents surely owes to President Trump’s success in markedly increasing the size of that cohort: from 7 to 13 of the 29 judges in active service. (The draw occurred some time last summer; there were probably only 11 or 12 Republican appointees at the time of the draw.)

In her majority opinion, Judge Ikuta explains that the Title X regulations are similar to those upheld by the Supreme Court in Rust v. Sullivan in 1991, and that they are in fact “less restrictive in at least one important respect: a counselor providing nondirective pregnancy counseling ‘may discuss abortion’ so long as ‘the counselor neither refers for, nor encourages, abortion.’” There therefore “is no ‘gag’ on abortion counseling” (even if one were to adopt the dubious position that a refusal to provide funding amounts to a “gag”).

Ikuta rejects arguments that two intervening congressional enactments render Rust’s holding no longer valid (pp. 32-48) and that the regulations are inconsistent with a provision in the so-called Affordable Care Act (pp. 49-58). She also rejects administrative-law claims that the Title X regulations are in various respects arbitrary and capricious (pp. 59-81).

In his dissent, Judge Paez repeats the tired claim that the Title X regulations “gag” health-care providers. Indeed, he even adopts the “Gag Rule” as his shorthand for the challenged regulations. He contends that the Title X regulations violate a 1996 law requiring that all pregnancy counseling be “nondirective” (pp. 4-11); that it violates the ACA (pp. 12-15); and that it is likely arbitrary and capricious (pp. 15-28).

Addendum (4:25 p.m.): A reader calls my attention to footnote 2 of the dissent, where Paez states that “people of all genders … can become pregnant.”

The Ninth Circuit has never decided to have a full en banc rehearing of a limited en banc panel ruling. I doubt very much that it will exercise that option here.

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