“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.
Two Trump 9th Circuit judges, Eric Miller and Kenneth Lee, cast key votes in a 7-4 July decision that keeps in effect the controversial Trump administration domestic gag rule that restricts federally-funded health clinics from discussing abortion with its patients. Although the decision in California v. Azar states that the court will further consider whether to suspend or uphold the gag rule, the ruling has been criticized for disregarding the “irreparable harm” the gag rule poses to “millions of patients.”
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 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 9th Circuit.
A three-judge panel ruled in June that the gag rule could go into effect pending appeal despite the lower court orders, and the full 9th Circuit agreed to consider an emergency motion to stay the three-judge panel ruling so that the gag rule would be suspended pending appeal. Because the 9th circuit has so many judges, a panel of 11 judges is randomly drawn to consider such en banc cases. Without any specific explanation other than stating that they had provided “due consideration,” the en banc panel voted 7-4 to deny the emergency motion and let the gag rule take effect. Chief Judge Sidney Thomas and three others dissented, and would have granted the motion to block the rule from taking effect.
Although the decision states that the court will “proceed expeditiously” to consider the underlying request to stay the three-judge court’s decision, it is unclear how long that will take and how long the gag rule will remain in effect pending appeal. Planned Parenthood described the order as “devastating” to the millions of people who rely on Title X and noted that the gag rule will “censor our doctors and nurses from doing their jobs,” and reiterated “that it would be “unethical and dangerous to require health care providers to withhold important information from patients.” In fact, Planned Parenthood and other groups subsequently announced that they would not participate in Title X while the gag rule remains in effect; Planned Parenthood stated it would temporarily use emergency funds to pay for care.