Court rejects abortion clinic 'gag rule'

November 04, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- A federal appeals court yesterday nullified the Bush administration's latest attempt to stop staff members at federally funded clinics from talking about abortion -- a "gag rule" that has been in force for just 34 days.

The U.S. Circuit Court of Appeals here immediately ordered the administration to stop enforcing the rule and told it to get public reaction before it tries again to impose the rule on clinics -- a process that could take months.

The "gag rule," upheld in an earlier form by the Supreme Court last year, has been under legal attack for years and has been the target of political flak during this year's presidential campaign. Bill Clinton has said that he would scuttle the rule as one of his first acts as president.

For years, the government allowed family planning clinics that receive federal aid to talk about abortion as an option so long as pregnant patients were not directed to get abortions.

But the Reagan administration changed that in 1988, imposing a total ban on any discussion of abortion at some 4,000 family planning clinics that serve nearly 4 million poor women. The Bush administration kept that regulation on the books -- although it was not enforced during the prolonged legal challenges.

Then, after the Supreme Court upheld the ban last year, President Bush reacted to a strong complaint from the medical profession, which argued that the rule would force clinic doctors to act unethically toward their pregnant patients by compelling them to leave out a significant medical option.

So, last November, the president told his aides to relax the rule -- but only for doctors, and only in a limited way. The rule was changed in March to permit doctors to discuss abortion as an option, but it continued to bar them from sending any pregnant patient to an abortion clinic.

Clinic operators have long argued that it was of little help to permit doctors to do the counseling, because most pregnancy discussions with patients at the clinics are handled by nurses and other staff aides. Under the gag rule, those staff aides still were forbidden to refer to abortion as an alternative.

In the new version, the "gag rule" finally went into effect Oct. 1, while the latest court challenge continued in the appeals court. Many clinics have refused to obey, and the government has started threatening a cutoff of funds -- as it did Monday with a Planned Parenthood clinic in Cincinnati.

Yesterday, the Circuit Court said the revised rule had been adopted illegally, because it was the kind of major shift in government policy that could only be adopted after giving the public a chance to react to it. The administration had not done so, simply putting out the changed rule as an order to its regional offices overseeing clinics.

The Circuit Court said the government actually had been limited in what it could do because it had won last year's Supreme Court case on the original "gag rule."

Because the Bush administration had defended the rule when it banned doctors, too, from talking about abortion, and because the Supreme Court accepted that approach, the administration was not free to adopt a new approach without first letting the public join in the process, the Circuit Court declared.

"The Supreme Court's clear understanding [of the original flat ban]," the Circuit Court said, "was that it prohibited abortion counseling by doctors. Now we are asked to forget that and docilely accept the [government's] new interpretation of the same regulation which is dramatically opposed to the one" put to the Supreme Court.

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