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We are used to leftist opinions from the often derisively labeled Ninth Circus Court of Appeals. However, President Trump with the support of Senator Majority Leader Mitch McConnell has seized the opportunity to firm up the Supreme Court, making wacky rulings from lower courts more difficult within the rules of the judicial game. He has steadily placed relatively reliable constitutionalist judges in lower courts, including the Ninth Circuit. This is starting to pay off in better decisions, like the latest on Title X funds and abortion. The latest Ninth Circuit decision also reflects the willingness of President Trump to actually uphold the laws passed by Congress, a refreshing change from both parties’ norms.
Statement from the Press Secretary
LAW & JUSTICE | Issued on: February 25, 2020
President Trump’s commitment to protecting the most vulnerable is unwavering, and we applaud yesterday’s Ninth Circuit decision upholding our Title X regulation. This regulation protects the unborn by ensuring Title X grants are allocated as Congress intended – and not as abortion providers or abortion advocacy organizations would prefer. By law, Title X prohibits grant funds from going to programs where abortion is considered a method of family planning. This ruling upholds the Title X regulation that will ensure compliance with that law. The President and his Administration remain committed to advancing pro-life policies.
Interest in a set of four Title X cases was strong enough to drive the Ninth Circuit to provide a special page for the cases, which ended up being considered together. The cases were rolled together and considered by 11 members (en banc), rather than just a three-judge panel.* While the case may be appealed to the Supreme Court, it is very unlikely that abortion advocates would get a better answer, especially at the injunction stage. Reading the rest of the court’s opinion, it seems unlikely the plaintiffs will manage to prevail at trial under guidance provided by this decision. If the left coast states lose at trial, and on appeal, it may be in their interest not to invite the Supreme Court to take another step away from Roe v. Wade.
Notice three things in this decision: (1) the Ninth Circuit is remanding the cases to district courts in the three left coast states, having rolled up the court papers and whacked the state governments and lower federal courts across the nose; (2) the cause of all this Court commotion is a Republican administration actually keeping its party platform promises, last acted on in 1988; (3) the pro-abortion states did not seek to raise any constitutional claims, sticking to arguments over the interpretation and application of laws. Read the Title X cases opinion summary for yourself and consider the section with emphasis added:
Before: Sidney R. Thomas, Chief Judge, and Edward Leavy, Kim McLane Wardlaw, William A. Fletcher, Richard A. Paez, Jay S. Bybee, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Eric D. Miller and Kenneth K. Lee, Circuit Judges.
Opinion by Judge Ikuta, Circuit Judge
Title X of the Public Health Service Act gives the Department of Health and Human Services (HHS) authority to make grants to support “voluntary family planning projects” for the purpose of offering “a broad range of acceptable and effective family planning methods and services.” 42 U.S.C. § 300(a). Section 1008 of Title X prohibits grant funds from “be[ing] used in programs where abortion is a method of family planning.” Id. § 300a-6.
Since 1970, when Title X was first enacted, HHS has provided competing interpretations of this prohibition. Regulations issued in 1988, and upheld by the Supreme Court in 1991, completely prohibited the use of Title X funds in projects where clients received counseling or referrals for abortion as a method of family planning. Rust v. Sullivan, 500 U.S. 173, 177–79 (1991). Regulations issued in 2000 were more permissive.
In March 2019, HHS promulgated regulations that are similar to those adopted by HHS in 1988 and upheld by Rust. But the 2019 rule is 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.” 42 C.F.R. § 59.14(e)(5). There is no “gag” on abortion counseling. See id.
Plaintiffs, including several states and private Title X grantees, brought various suits challenging the 2019 rule, and three district courts in three states entered preliminary injunctions against HHS’s enforcement of the rule. In light of Supreme Court approval of the 1988 regulations and our broad deference to agencies’ interpretations of the statutes they are charged with implementing, plaintiffs’ legal challenges to the 2019 rule fail. Accordingly, we vacate the injunctions entered by the district courts and remand for further proceedings consistent with this opinion.
 Congress did not design the Title X grant program to provide healthcare services beyond “family planning methods and services.” 42 U.S.C. § 300(a); cf. Dissent at 1.
Let’s break that down. In the last year of President Reagan’s second term — not before — his administration issued a strongly pro-life, anti-abortion regulation. That regulation was challenged and eventually upheld by the Supreme Court in the third year of Bush the First’s presidency. Bill Clinton let this regulation stand, perhaps not strongly enforcing it, until the last year of his second term, when he loosened the restrictions on advocating with federal dollars for women to have abortions. President Bush the Second did nothing about this regulation, even though he ran twice as a strong pro-life candidate, with his own redemption-through-faith story. Naturally, President Obama was happy to leave the Clinton regulation in place. It took President Trump to actually treat pro-life social conservatives seriously, which is why he is so hated by the left, TruCons, and, perhaps, “suburban women” voters.**
* Because of the Ninth Circuit’s grotesque metastasization, en banc does not mean all the active Circuit judges hear the case. Instead, they have an internal Ninth Circuit Court rule establishing en banc hearings by the Chief Judge and 10 other judges randomly selected for a given case.
CIRCUIT RULE 35-3.
LIMITED EN BANC COURT
The en banc court, for each case or group of related cases taken en banc, shall consist of the Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of the Court. In the absence of the Chief Judge, an 11th active judge shall be drawn by lot, and the most senior active judge on the panel shall preside. (Rev. 1/1/06, 7/1/07)
The drawing of the en banc court will be performed by the Clerk or a deputy clerk of the Court in the presence of at least one judge and shall take place on the first working day following the date of the order taking the case or group of related cases en banc.
If a judge whose name is drawn for a particular en banc court is disqualified, recused, or knows that he or she will be unable to sit at the time and place designated for the en banc case or cases, the judge will immediately notify the Chief Judge who will direct the Clerk to draw a replacement judge by lot. (Rev. 1/1/06)
In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc.
** For two contrasting views on “suburban women” voters, see:
— Los Angeles Times, May 24, 2019, “Abortion debate sparks women’s activism and jumps to the head of 2020 campaign agenda“
— The Atlantic, May 23, 2019, “White Women Are Helping States Pass Abortion Restrictions“Published in