Judicial #resistance against the Trump administration is spiraling out of control.
Honestly, after two years of nationwide injunctions, ludicrously expanded standing rules, and blatant disregard for precedent, it’s become hard for the judicial #resistance to surprise. If there is a Trump regulation they can block — at least temporarily — they will do so, sound reasoning be damned. But even my cynical heart received a jolt at the sheer brazenness of Judge Stanley Bastian, from the Eastern District of Washington.
Yesterday he issued (yes, of course) a nationwide injunction blocking implementation of the Trump administration’s new Title X regulations — regulations that were a milder version of the Reagan administration’s so-called “gag rule” against abortion counseling by Title X recipients. Whereas the Reagan rule prohibited Title X projects from counseling or referring for abortion, the Trump rule limits the referral. Both the Trump and the Reagan rules required physical and financial separation of Title X projects from abortion-related activities.
But here’s what makes Judge Bastian’s decision so brazen. The stricter Reagan rules were upheld by the Supreme Court of the United States in Rust v. Sullivan, one of the seminal abortion decisions of the Rehnquist Court. The Court noted that Title X itself states that “none of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning” and then held that the Reagan rule — which, again, prohibited even abortion counseling — “plainly allow[ed] the Secretary’s construction of the statute” and that the administration’s break with past regulatory practice was supported by “reasoned analysis.”
Given this on-point Supreme Court precedent, you would think that a judge contradicting it would engage in searching analysis of why the Court’s ruling doesn’t govern the case.
The Affordable Care Act, for example, does contain provisions prohibiting regulations that “interfere with communications regarding a full range of treatment options between the patient and the provider” or that create “unreasonable barriers to the ability of individuals to obtain appropriate medical care.” But the ACA does not disturb Title X’s prohibition against use in programs “where abortion is a method of family planning,” and that is the key language the Supreme Court used to uphold Reagan’s rule.
Read the rest from David French
HERE.
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