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AMA and Planned Parenthood ask Supreme Court to block federal abortion referral rule

The petition filed Thursday comes as the high court faces a vacancy following the death of Justice Ruth Bader Ginsburg. But a contentious confirmation fight looms over President Donald Trump's pick for the seat, federal appeals court judge Amy Coney Barrett, who has expressed views and joined opinions that suggest she is receptive to further restrictions on abortion rights and would likely help further cement a conservative majority on the court.
The case concerns Title X, a federally funded program that serves about 4 million people a year, according to the Department of Health and Human Services. It provides resources including contraception, breast and cervical cancer screenings, and preventive education and testing for sexually transmitted diseases and HIV -- but not abortions.
Last year, HHS moved to bar health care providers participating in the program from discussing abortion with patients or offering abortion referrals, prompting multiple federal court challenges. AMA was a plaintiff on one such case in Oregon, in which a federal judge blocked the rule.
In August 2019, the 9th US Circuit Court of Appeals allowed the rule to go into effect despite the ongoing challenge against it, prompting Planned Parenthood to withdraw from the program. But last month, the 4th Circuit Court of Appeals upheld a lower court's block on the rule, resulting in conflicting rulings.

"This court's review is warranted to resolve that circuit conflict on important questions of federal law, and to correct the Ninth Circuit's erroneous decision," the AMA wrote to the Supreme Court on Thursday. In addition to AMA, Planned Parenthood, several of its affiliates, and other health care providers and associations are bringing the lawsuit.

The impact of the rule going into effect has been stark. About 900 clinics dropped out of the program by the start of 2020, according to a report by reproductive rights group Power to Decide, citing instances of more limited and expensive services. Additionally, after HHS opted to reassign the relinquished Title X funds to other remaining participants, a report by the nonpartisan Kaiser Family Foundation found gaps in the new coverage.

Eighty-three percent of grantees were in states that lost 20% or less of their participating clinics after the rule, while none of the six states in which all participating clinics dropped out of the program after the rule change received any of the reassigned funds, according to the report.

When asked whether the ensuing court situation weighed on the petition's timing, AMA President Dr. Susan Bailey said it had not.

"The timing of the petition corresponds with the Monday, October 5 deadline to file based on the 9th Circuit Court's decision, and our petition would have been filed now regardless of the Supreme Court nomination process," she told CNN.

Mia Palmieri Heck, director of external affairs at HHS' Office of the Assistant Secretary for Health, indicated Thursday that the agency would defend the rule, noting how opponents have characterized the new requirement as a "gag rule."

"This rule is not a 'gag rule' and we are pleased the 9th Circuit ruled in agreement earlier this year," Heck said in a statement. "HHS aims to ensure the integrity of the program so that more women and men are provided services that help them consider and achieve both their short-term and long-term family planning needs."

Thursday's challenge isn't the only abortion case awaiting decision from the high court. In August, the Trump administration asked the Supreme Court to reinstate a rule requiring abortion seekers to visit health care providers in person to acquire one of the pills for medication abortions, after lower courts blocked the rule during the ongoing coronavirus pandemic.

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