More than 500 Title X service sites no longer are in the program, and Planned Parenthood, which served 40% of the Title X patients in 2017, has stopped participating, Ruth Harlow, senior staff attorney at the ACLU Reproductive Freedom Project, told the court.
She said several states have dropped out of the program, and there are now gaps in services in 28 states.
Brinton Lucas, arguing for the Trump administration, insisted "the concerns about harm have been somewhat overblown."
He said states and private donations are going to make up the shortfall in many cases, and he characterized the 20% dropout rate as relatively small. The dropout rate doesn't mean all "the doors will be shuttered," he said.
Judge Consuelo M. Callahan, appointed by President George W. Bush, noted that if the court ruled against the administration, it would suffer a hardship too.
"Isn't it a hardship to the government if they can't implement a program that is constitutional," she asked.
She added that new administrations often change policies from those held by their predecessors and noted that the new rule has an exception on abortion referrals when the life of the mother is clearly at risk.
Judge Richard Paez, a Bill Clinton appointee, said it just makes "common sense" that if a doctor counsels a patient about an option, he or she should be able to refer the patient to someone who can help the patient obtain the chosen care.
More than 4 million people in the U.S. rely on Title X funding to obtain contraception, cervical and breast cancer screenings and testing and treatment for sexually transmitted diseases.
The program received about $286.5 million this year, including about $60 million slated for Planned Parenthood.
A 9th Circuit panel of three Republican appointees decided in June to lift the preliminary injunctions issued by district judges.
The challengers asked a larger, en banc panel to overturn that decision. The seven Republican appointees on the panel refused to reinstate the injunction. The four Democrats dissented.
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