search
Sections List
American Journal News

Supreme Court takes abortion case that could end free speech for doctors

The case puts access to health care at risk — but that’s not all.

By Lisa Needham - February 23, 2021
Share
Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett

On Monday, the U.S. Supreme Court agreed to hear a case that could decide whether the Trump administration’s domestic gag rule should be upheld.  The domestic gag rule prohibits any facility that performs abortions from receiving Title X funds, which pay for birth control and reproductive health care for Americans with lower incomes.

When that rule was passed, it forced Planned Parenthood, which served 40% of patients who receive Title X funds, out of the program entirely. However, the Trump-era rule didn’t just prohibit funds. It also had the effect of compelling speech by requiring those Title X providers that remained to refuse to provide abortion-related information but be forced to give information on non-abortion options, regardless of their medical opinions or concerns. 

This case made it to the Supreme Court because two separate federal circuit courts of appeal decided challenges to the rule differently. The Fourth Circuit said the rule was invalid, but the Ninth Circuit upheld the rule. Because of that, the American Medical Association, one of the plaintiffs seeking to overturn the rule, asked the Supreme Court to hear the case, and it agreed

That’s not uncommon when the federal circuits split and decide an issue differently, and part of the Supreme Court’s job is to resolve those splits so a federal rule isn’t enforced differently across the country. In this instance, however, there’s a real danger for abortion rights advocates in the Supreme Court hearing the case, as the court now has a solidly conservative majority. 

The Supreme Court has been asked to address three separate, yet related, questions. The first is whether the domestic gag rule is “arbitrary and capricious,” a term that refers to a rule that is not well-founded in law or fails to consider a key aspect of the problem the agency is trying to address.

The second is whether the domestic gag rule violated Title X’s appropriations act, as that act requires “all pregnancy counseling” to be “nondirective” — in other words, to not push for a specific outcome. Finally, the medical association and other plaintiffs allege that the rule violates Section 1554 of the Affordable Care Act, which bars the Department of Health and Human Services from putting forth a regulation that interferes with communication between a provider and a patient. 

All of these questions implicate free speech issues, which the Supreme Court often addresses. More specifically, they are about compelled speech: Can the government force you to do or say something you don’t want to do? In their petition requesting the Supreme Court hear the case, the AMA said the Trump-era rule forces them to withhold information about abortion, even when a patient specifically requests information, while at the same time requiring providers to force patients to hear about non-abortion options even if a patient says they do not want to. 

The AMA, along with other medical groups, opposed the rule for just this reason, saying that “[r]estricting the information that physicians can provide to their Title X patients blocks honest, informed conversations about all health care options.” Even HHS ultimately conceded that not a single medical professional organization has taken the stance that the rule is aligned with medical ethics. 

Usually, conservatives on the court dislike when speech is compelled. Take, for example, Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, a conservative religious baker argued that he should not be required to bake cakes for same-sex couples who were getting married because doing so would require him to “express a message with which he disagreed.” Justice Clarence Thomas, in his opinion concurring with the result in the case, said that states can’t compel people to affirm someone else’s belief or force them to speak when they want to be silent. 

But that’s precisely what the gag rule does. It requires doctors to be silent about abortion options but forces them to talk about non-abortion options, regardless of what they or the patient wants. 

But doctors’ groups say that stance doesn’t just fly in the face of free speech considerations, Ii also violates Title X’s requirements that people receive “nondirective” counseling on all their reproductive health options, which necessarily includes abortion. Several of the groups, including the American College Of Obstetricians And Gynecologists and the American Academy Of Family Physicians, argued at the Ninth Circuit that the essence of nondirective counseling is that it is patient-driven and responds to each patient’s expressed needs. Having the government tell doctors what they can and cannot say — and what patients can and cannot hear — flies in the face of this, they said. 

Restricting doctors’ speech is a common goal of anti-abortion activists. In both Tennessee and Mississippi, doctors are now required to interrogate patients about the reasons they want an abortion. It’s also a view that conservative members of the Supreme Court have implicitly endorsed. In early 2020, the court let stand a Kentucky law that forces doctors to perform invasive transvaginal ultrasounds on patients seeking abortions and provide a description of the images, even if the patient refuses to look. 

Much of the domestic gag rule discussion has rightly focused on how it decimated Title X services. The Guttmacher Institute, which researches reproductive health policy, found that the gag rule cut Title X patient capacity in half and found that roughly one-quarter of all Title X providers had to leave after the rule was passed. That translated to reproductive health care being jeopardized for well over 1 million low-income people. However, the restrictive speech requirements forced on doctors and patients could have a major impact as well. 

This case is in an odd place procedurally because the plaintiffs sued during the Trump administration, an administration committed to decreasing reproductive health care access. At the lower courts, Trump’s Department of Justice attorneys argued in favor of keeping the domestic gag rule. However, President Joe Biden’s administration has directed the Department of Health and Human Services to review the rule in light of Biden’s commitment to “support women’s and girls’ sexual and reproductive health and rights in the United States.” 

In light of that, the AMA asked the Supreme Court in December 2020 to delay granting or denying the petition until the new administration had a chance to weigh in. The court declined to wait, though it is possible it will ask the new administration to provide input. However, with a staunch 6-3 conservative, anti-abortion majority on the court, the current administration’s wishes may not matter. 


Read More
Biden campaign launches new ad focused on Affordable Care Act

Biden campaign launches new ad focused on Affordable Care Act

By Kim Lyons, Pennsylvania Capital-Star - May 08, 2024
Ohio doctors fear effects of emergency abortion care case set to go before U.S. Supreme Court

Ohio doctors fear effects of emergency abortion care case set to go before U.S. Supreme Court

By Susan Tebben, Ohio Capital Journal - April 23, 2024
House GOP votes to end flu, whooping cough vaccine rules for foster and adoptive families

House GOP votes to end flu, whooping cough vaccine rules for foster and adoptive families

By Anita Wadhwani, Tennessee Lookout - March 26, 2024
U.S. House Speaker Johnson says IVF should be protected — just not by Congress

U.S. House Speaker Johnson says IVF should be protected — just not by Congress

By Jennifer Shutt, States Newsroom - March 14, 2024
Idaho bill banning public funds for gender-affirming care goes to Senate

Idaho bill banning public funds for gender-affirming care goes to Senate

By Mia Maldonado, Idaho Capital Sun - March 14, 2024
Alabama passed a new IVF law. But questions remain.

Alabama passed a new IVF law. But questions remain.

By Alander Rocha, Alabama Reflector - March 11, 2024
AJ News
Latest
Ted Cruz leverages Trump conviction on podcast for own personal gain

Ted Cruz leverages Trump conviction on podcast for own personal gain

By Jesse Valentine - June 11, 2024
Arizona Republican Kari Lake proposes massive cuts to Medicaid and Medicare

Arizona Republican Kari Lake proposes massive cuts to Medicaid and Medicare

By Jesse Valentine - June 10, 2024
Virginia U.S. Senate candidate Hung Cao says workplace diversity is ‘Marxism’

Virginia U.S. Senate candidate Hung Cao says workplace diversity is ‘Marxism’

By Jesse Valentine - June 06, 2024
Republican Bernie Moreno’s rags-to-riches story exposed as a lie

Republican Bernie Moreno’s rags-to-riches story exposed as a lie

By Jesse Valentine - May 24, 2024
What happens to clinics after a state bans abortion? They fight to survive.

What happens to clinics after a state bans abortion? They fight to survive.

By Chabeli Carrazana and Shefali Luthra - May 22, 2024
Former Sen. Kelly Ayotte took job at Caterpillar after tax fraud probe

Former Sen. Kelly Ayotte took job at Caterpillar after tax fraud probe

By Jesse Valentine - May 21, 2024
Alabama OB-GYN residencies dropped over 20% after Dobbs, state abortion ban, says analysis

Alabama OB-GYN residencies dropped over 20% after Dobbs, state abortion ban, says analysis

By Alander Rocha, Alabama Reflector - May 21, 2024
House GOP celebrates National Police Week while pushing to defund local law enforcement

House GOP celebrates National Police Week while pushing to defund local law enforcement

By Jesse Valentine - May 16, 2024
Evolution denier Mark Robinson could reshape North Carolina’s education system

Evolution denier Mark Robinson could reshape North Carolina’s education system

By Jesse Valentine - May 16, 2024
Republican Jay Ashcroft backs anti-abortion clinics that push lies and disinformation

Republican Jay Ashcroft backs anti-abortion clinics that push lies and disinformation

By Jesse Valentine - May 14, 2024
Republican Sam Brown’s assault on teacher unions could backfire

Republican Sam Brown’s assault on teacher unions could backfire

By Jesse Valentine - May 09, 2024
Florida abortion ban puts GOP Rep. Anna Paulina Luna’s anti-choice views in spotlight

Florida abortion ban puts GOP Rep. Anna Paulina Luna’s anti-choice views in spotlight

By Jesse Valentine - May 07, 2024
Trump leaves door open to banning medication abortion nationwide

Trump leaves door open to banning medication abortion nationwide

By Jennifer Shutt, States Newsroom - April 30, 2024
Republican Caroleene Dobson wants Alabama abortion ban to go nationwide

Republican Caroleene Dobson wants Alabama abortion ban to go nationwide

By Jesse Valentine - April 30, 2024
Ohio Gov. DeWine said he didn’t know of millions in FirstEnergy support. Is it plausible?

Ohio Gov. DeWine said he didn’t know of millions in FirstEnergy support. Is it plausible?

By Marty Schladen, Ohio Capital Journal - April 29, 2024
GOP Rep. Zach Nunn suggests laws against hate crime aren’t needed

GOP Rep. Zach Nunn suggests laws against hate crime aren’t needed

By Jesse Valentine - April 15, 2024
GOP Senate candidate Hung Cao blames racial equity for Baltimore bridge tragedy

GOP Senate candidate Hung Cao blames racial equity for Baltimore bridge tragedy

By Jesse Valentine - March 29, 2024
GOP Rep. Jennifer Kiggans donates thousands to far-right extremists

GOP Rep. Jennifer Kiggans donates thousands to far-right extremists

By Jesse Valentine - March 08, 2024
Ohio senate candidate Bernie Moreno: “Absolute pro-life no exceptions.”

Ohio senate candidate Bernie Moreno: “Absolute pro-life no exceptions.”

By Jesse Valentine - March 07, 2024
Anti-China Republicans pocket thousands from Chinese owned conglomerate

Anti-China Republicans pocket thousands from Chinese owned conglomerate

By Jesse Valentine - March 04, 2024
Republican Eric Hovde makes inconsistent statements about family history

Republican Eric Hovde makes inconsistent statements about family history

By Jesse Valentine - February 26, 2024
Republican David McCormick invests millions in website that platforms Holocaust denial

Republican David McCormick invests millions in website that platforms Holocaust denial

By Jesse Valentine - February 09, 2024
Lawmakers will again take up bills expanding, tightening gun laws

Lawmakers will again take up bills expanding, tightening gun laws

By Annmarie Timmins, New Hampshire Bulletin - January 31, 2024
UAW delivers rousing presidential endorsement for Biden over ‘scab’ Trump

UAW delivers rousing presidential endorsement for Biden over ‘scab’ Trump

By Ashley Murray, States Newsroom - January 24, 2024
Republicans Sam Brown and Jeff Gunter sling mud in Nevada senate primary

Republicans Sam Brown and Jeff Gunter sling mud in Nevada senate primary

By Jesse Valentine - January 17, 2024
A Young Texas Woman Almost Died Due To The Texas Abortion Bans – Now She’s Battling To Save Other Women

A Young Texas Woman Almost Died Due To The Texas Abortion Bans – Now She’s Battling To Save Other Women

By Bonnie Fuller - January 10, 2024
Health care legislation preview: Maryland advocates want to focus on access, patients in 2024 session

Health care legislation preview: Maryland advocates want to focus on access, patients in 2024 session

By Danielle J. Brown, Maryland Matters - January 08, 2024
How GOP senate hopefuls try to excuse the  January 6 insurrection

How GOP senate hopefuls try to excuse the  January 6 insurrection

By Jesse Valentine - January 05, 2024
NH lawmakers will be taking up major voting bills this year. Here are some to watch for.

NH lawmakers will be taking up major voting bills this year. Here are some to watch for.

By Ethan DeWitt, New Hampshire Bulletin - January 04, 2024
Republican US Senate candidates want to make Trump’s tax cuts permanent 

Republican US Senate candidates want to make Trump’s tax cuts permanent 

By Jesse Valentine - December 22, 2023
Rand Paul went all in on the Kentucky governor’s race. It didn’t work.

Rand Paul went all in on the Kentucky governor’s race. It didn’t work.

By - December 15, 2023
Texas governor and attorney general do little to curb state’s chemical plant crisis

Texas governor and attorney general do little to curb state’s chemical plant crisis

By Jesse Valentine - December 08, 2023
Likely GOP Senate candidate Eric Hovde proposed tax hike for poorer workers and retirees

Likely GOP Senate candidate Eric Hovde proposed tax hike for poorer workers and retirees

By Jesse Valentine - December 07, 2023
Whitmer signs specific criminal penalties for assaulting health care workers into law

Whitmer signs specific criminal penalties for assaulting health care workers into law

By Anna Liz Nichols, Michigan Advance - December 06, 2023
105 Republicans voted to expel Santos for things Trump has also done

105 Republicans voted to expel Santos for things Trump has also done

By Jesse Valentine - December 05, 2023
For Texas Sen. Ted Cruz, another Trump term is another chance to kill Obamacare

For Texas Sen. Ted Cruz, another Trump term is another chance to kill Obamacare

By Jesse Valentine - December 04, 2023
Florida Sen. Rick Scott backs Donald Trump in revived push to repeal Obamacare

Florida Sen. Rick Scott backs Donald Trump in revived push to repeal Obamacare

By Jesse Valentine - November 30, 2023
Tate Reeves took donations from power company that hiked customer rates

Tate Reeves took donations from power company that hiked customer rates

By Jesse Valentine - November 06, 2023
Daniel Cameron ran on depoliticizing the Kentucky AG’s office. He made it more political.

Daniel Cameron ran on depoliticizing the Kentucky AG’s office. He made it more political.

By Jesse Valentine - November 03, 2023
Republican operatives sound every alarm on current trajectory of 2023 governor’s race

Republican operatives sound every alarm on current trajectory of 2023 governor’s race

By Adam Ganucheau, Mississippi Today - October 24, 2023
Judge strikes down Florida gender-affirming care restrictions for minors and adults

Judge strikes down Florida gender-affirming care restrictions for minors and adults

By Orion Rummler, Louisiana Illuminator - June 12, 2024
‘We need something that works’: Activists call for more resources for gun violence prevention

‘We need something that works’: Activists call for more resources for gun violence prevention

By Lucy Valeski, Michigan Advance - June 07, 2024
‘Democracy begins with each of us,’ Biden says at site of D-Day invasion in Normandy

‘Democracy begins with each of us,’ Biden says at site of D-Day invasion in Normandy

By Jennifer Shutt, States Newsroom - June 07, 2024
Nessel, House LGBTQ+ Caucus warn that Trump and GOP endanger hard-fought rights 

Nessel, House LGBTQ+ Caucus warn that Trump and GOP endanger hard-fought rights 

By Jon King, Michigan Advance - June 06, 2024