SAN FRANCISCO (CBS SF) – A specially convened 11-judge federal appeals court panel heard arguments in San Francisco Monday on lawsuits challenging a new rule by President Donald Trump’s administration that would bar federally funded family planning clinics from providing abortion referrals.
The judges of the 9th U.S. Circuit asked questions supporting both sides of the dispute and did not indicate how they will rule when they issue a written opinion at a later date.
The court is considering the government’s appeal of three preliminary injunctions issued by federal trial judges in San Francisco, Washington and Oregon blocking the rule.
In July, the same panel voted by a 7-4 vote to stay the injunctions, or put them on hold, until the appeal is resolved, thus allowing the rule to go into effect for the time being.
The three lower court judges issued the injunctions in lawsuits filed by a total of 21 states, including California, and several doctors, clinics and Planned Parenthood branches.
The U.S. Health and Human Services Department issued the rule in connection with a 1970 law that provides financial grants for family planning clinics but forbids use of the funds for abortions. Since 2000, Congressional budget laws have allowed the clinics to provide neutral, “non-directive” counseling that could include abortion referrals.
The new rule takes another step by prohibiting doctors and other staff from giving abortion referrals or encouraging abortions.
Oregon Solicitor General Benjamin Gutman argued to the court, “The playing field is tilted here. That’s not non-directive counseling.”
But Circuit Judge Consuelo Callahan queried, “Isn’t it a hardship to the government if they can’t implement a program that’s constitutional?”
Part of the hour-long hearing centered on the Congressional measure providing for “non-directive” counseling, which the plaintiffs states and doctors claim should override the HHS administrative rule.
U.S. Department of Justice attorney Hashim Mooppen argued, “Counseling and referral are two separate activities,” so that the rule is not in conflict with the budget law.
Circuit Judge Richard Paez commented, “Common sense suggests that when you go to a doctor and the doctor gives you recommendations or suggestions, when you see someone, they’re going to give you a referral.”
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