Maine Family Planning may take a legal battle over what critics call a “gag rule” on abortion providers to a federal appeals court in Boston after losing a ruling in Maine last week.

The nonprofit sued the Trump administration last year over a rule that put new restrictions on federally funded family planning agencies. The agencies already could not use federal funds for most abortion services, but the new rule also prohibits them from providing abortion referrals or operating in the same building where they provide abortion services.

Critics including the American Medical Association said those restrictions would limit access to abortion and other medical care for low-income patients. Supporters said taxpayer dollars should not go to abortion providers even though the grants are used for other services.

Maine Family Planning and other abortion providers filed complaints over that rule in courts across the country. Federal judges alternatively blocked the rule and allowed it to take effect, and ultimately the government began to enforce the rule last summer. With its own lawsuit still pending at the time, Maine Family Planning announced that it would forgo grants of hundreds of thousands of dollars rather than move its abortion services or close its clinics.

U.S. District Judge Lance Walker dismissed the Maine lawsuit last week. It was the second time he sided with the federal government in the case and allowed the rule to stand. He denied a motion last July that would have put the rule on hold while the lawsuit played out in court.

In his most recent ruling, Walker said the rule does not prevent providers from talking generally about abortion with their patients or deny those patients access to the procedure.

“Though the Rule requires a referral for prenatal services and permits providers to supply a list of comprehensive primary health care providers, these measures leave ample room for Title X grantees to provide nondirective counseling concerning the abortion option, and to explain that the prenatal care referral is mandated and an abortion referral is prohibited within the Title X program,” Walker wrote.

George Hill, president and CEO of Maine Family Planning, said he was disappointed by the ruling.

“We think he’s wrong,” Hill said. “Our next step is to decide whether to continue this case at the 1st Circuit Court of Appeals level.”

The Center for Reproductive Rights represented Maine Family Planning in the lawsuit.

“We are disappointed that the Judge did not recognize the very real harms this rule creates, not to mention the federal government’s utter disregard for how its actions will injure millions of people,” Emily Nestler, senior staff attorney, said. “This rule has dismantled the Title X program – a program that has been critical in helping low-income Mainers access contraception and other reproductive health care. We are currently assessing all possible legal avenues to keep fighting this unlawful policy.”

Hill said the decision to appeal is tied in part to pending legal challenges in other states. One federal appeals court in California upheld the rule in February, but another in Maryland is still considering a similar case. That outcome could affect an appeal by Maine Family Planning, and Hill said the organization has three more weeks to finalize its decision.

“If we don’t have a decision by then, we will make a decision ourselves,” he said.

An attorney who represented defendants in the case, including the U.S. Department of Health and Human Services, did not respond to an email seeking a reaction to the ruling and comments about the case.

Federal money cannot pay for abortions except in the case of rape, incest or to save the life of the woman. The Title X program pays for birth control, STD tests and cancer screening for low-income people.

Maine Family Planning was the only Title X grantee in the state and received nearly $2 million from the program each year. It runs 18 clinics and shared the federal funds with Planned Parenthood clinics and other health centers in Maine. The money represented more than a quarter of the agency’s annual revenue, and more than 23,000 patients in Maine accessed services through the program every year.

The new rule bans family planning clinics that receive Title X funds from making abortion referrals – what critics are calling a “gag rule.” The clinics are also barred from providing abortion services in the same buildings where they provide health services paid for by Title X funds, a requirement that would increase costs for many providers.

Maine Family Planning has said that expense could force it to stop offering abortion services at all but one of its clinics. Under that scenario, Mainers would have only three publicly accessible locations for abortion care across the state – the flagship Maine Family Planning Clinic in Augusta, the Mabel Wadsworth Center in Bangor and the Planned Parenthood location in Portland.

Walker said the requirement for physical separation between abortion clinics and other services is legal.

“To be sure, Maine Family Planning was not violating the law when it built out its statewide network of dual-purpose clinics, but it built the network on shifting sands and the current administration’s assessment that a Title X contribution to abortion clinic overhead is a subsidy is every bit as reasonable as the assessment of prior administrations that sharing clinic space and other infrastructure is not a subsidy if abortion services are not paid for with Title X funds,” he wrote. “At the end of the day, it depends on how one looks at it and, evidently, what one’s political leanings are. Answers to political questions are not arbitrary and capricious just because they are not preferred by industry experts.”

Hill said services have not been interrupted so far, although clinics are relying more heavily on telehealth during the pandemic. The nonprofit is relying on private donations and reserve funds to make up for the grants, but that money represented more than 25 percent of the organization’s $8 million budget. Maine lawmakers are considering a bill that would give state money to cover that shortfall.

“Patients still have unrestricted access to the full range of reproductive healthcare services that we have been making available to them for almost 50 years,” Hill said. “It’s put an enormous burden on our back office side to raise the funds necessary to do this. We’ve been fortunate so far.”

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