Planned Parenthood faces critical decision after abortion-referral restriction upheld

Last month, an en banc panel of 11 judges on the 9th US Circuit Court of Appeals upheld the court's prior ruling to temporarily allow the Department of Health and Human Services rule to go into effect. The rule would prohibit taxpayer-funded family planning clinics from discussing abortion with patients or referring patients to abortion providers.

The following week, HHS told Title X recipients that the new regulations would go into effect despite the pending legal challenges. Planned Parenthood then lobbied the court to reconsider its decision.

Planned Parenthood said it would pull out of the Title X program rather than participate in the so-called "gag rule." The Title X program serves about 4 million people a year, according to HHS. Planned Parenthood covers 40% of Title X's patients and has been involved with the program since it began, according to the organization.

Critics say the regulations would mostly affect communities of color, low-income people, the uninsured and rural residents.

"The full court has been advised of the motions for full court en banc reconsideration and no judge has requested a vote on whether to rehear the matter as a full en banc court," Chief Judge Sidney Thomas wrote in the brief order Friday. "The motions for full court en banc reconsideration are denied."

Friday's ruling leaves Planned Parenthood to decide whether it will follow through with its promised departure from the program, which could come on Monday. That's the deadline for providers participating in Title X to provide compliance assurance to HHS regarding the rule.

Planned Parenthood President Alexis McGill Johnson slammed the court's decision in a statement Friday.

"Trump's administration is trying to force us to keep information from our patients," she wrote. "We refuse to cower to this President. The gag rule is unethical, dangerous, and we will not subject our patients to it. We are considering all of our options -- the Trump administration is recklessly putting birth control and reproductive health care for millions of people at risk."

The statement added that Planned Parenthood would consider its options before announcing "next steps" on Monday.

Mia Heck, director of external affairs at HHS' Office of the Assistant Secretary for Health, told CNN prior to the ruling that in light of Planned Parenthood's threat to leave, the office would seek out other providers should the organization not abide by the rule.

Any grantee not complying with the rule "must relinquish its grant or face termination of its grant," Heck told CNN in a statement. "Where feasible, HHS will consider a new administering agency to fulfill any obligations that the non-complying grantee is not able or willing to complete."

She also pointed to an earlier statement accusing Planned Parenthood of "actually choosing to place a higher priority on the ability to refer for abortion instead of continuing to receive federal funds to provide a broad range of acceptable and effective family planning methods and services to clients in need of these services."

The battle over whether Planned Parenthood will stay in or leave the program had been brewing since Wednesday, when the organization filed a letter indicating that it would pull out of the program should the court not block the referral restriction.

A lawyer for Planned Parenthood wrote that direct Title X grantees "sought to preserve their ability to immediately resume providing services under the Title X program should this Court order the requested emergency relief," but that HHS had denied their requests to remain in the program and use outside funding to provide services blocked by the rule as inconsistent with department guidance.

"With deep regret, however, its direct grantees now have no option but to withdraw from the Title X program," Alan Schoenfeld, a lawyer for Planned Parenthood, wrote in the letter. "Absent emergency judicial relief, they must do so by the close of business on Monday, August 19 -- less than a week away."

HHS responded Thursday, sending its own letter to the court urging it to deny Planned Parenthood's request to block the rule.

"If the seven Planned Parenthood direct grantees insist on providing abortion referrals even within a federally funded program, and feel so strongly that they would withdraw from the program and the public they serve, that is their own choice, not a consequence of the Rule," wrote Jaynie Lilley, a lawyer for HHS.

Multiple federal judges had blocked the rule prior to the 9th Circuit's reviews of it in June and July. US District Judge Michael J. McShane called the federal restriction a "ham-fisted approach to public health policy."

CNN's Devan Cole and Kate Sullivan contributed to this report.

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