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

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

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.