Who Is Judge Michael McShane? New Details About The Judge Fighting Oregon Law Prohibiting Abortion Referrals
Oregon Judge Michael McShane has struck a blow to attempts to block abortion access.
Willamette Weekly A federal judge in Oregon issued the first of what may be multiple injunctions against a new Trump administration rule designed to limit access to abortions. The “gag rule” would bar clinics receiving federal Title X funds from performing abortions or referring patients to other facilities for abortions. Title X is a 40-year-old program that gives grant money to health care providers who perform family planning and other reproductive health services. Under current rules, no Title X funds may pay for abortions, though providers who perform abortions are eligible for Title X grants for other services.
Judge Michael McShane, who heard the challenge to the rule is no stranger to the hot button topics of American politics, having been called on to rule on a case contesting a ban on gay marriage in 2014. In that case, as in this one, he felt that the law was not in the best interests of the American people. Who is Judge Michael McShane? Read on for all the details.
1. Michael McShane's judicial career
Judge McShane has been a federal judge since 2013 when he was appointed by President Obama. When he took the job, he became the first openly gay federal judge in Oregon. Perhaps that is why it was especially poignant that he was also the judge to overturn Oregon’s law banning same-sex unions in 2014. The move was hailed by LGBTQ+ groups and decried by conservatives at the time. According to the Washington Post, in his ruling he said: “I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our constitution to protect, if not exalt, in equal measure.” In 2018, McShane published a long personal essay in the Advocate called I Will Never Forget My First Gay Friends, where he described his friendships and romantic entanglements with a group of men in the 1980s. Tragically, McShane is the only one of the five still living; the rest died of AIDS. He is now married and is raising his son and his husband’s nephew.
McShane wrote a tribute ot friends who died in the AIDS epidemic.
2. Gag rule
This year, McShane was called up to rule on a new federal rule published by the Trump administration, designed to reduce access to abortion services. The rule would bar clinics from receiving Title X family planning funds if the clinic either performs or refers patients elsewhere if the patients want an abortion. In practice, this would mean a facility that is willing to tell a patient where to go to seek an abortion would be automatically disqualified from receiving federal funds that support other reproductive health services such as birth control and STD screenings. The impact would be incredibly far reaching, as few health care providers currently refuse to comment on abortion when directly asked by a patient. The rule would be similar to the so-called “global gag rule” imposed by past administrations to require clinics in foreign countries to abide by such rules before receiving any US foreign aid grants. This is the first time the government has attempted to do so in the United States.
Title X affects many low income patients.
3. Legal challenge
Almost as soon as the rule was announced, different entities filed suit to block implementation. CNN reported that the American Medical Association, Planned Parenthood as well as twenty-two states all took legal action to block the rule. “Because of the administration’s overreach and interference in health-care decision-making, physicians will be prohibited from having open, frank conversations with their patients about all their health care options,” Barbara L. McAneny, the AMA’s president, said in a statement, reported by the Washington Post.
The AMA opposed the rule.
4. McShane’s response
Judge McShane was unequivocal in his skepticism of the new rule, and The Hill reports that he questioned defense counsel repeatedly about how it would improve health outcomes. He ultimately felt that it was a “ham fisted” approach to manipulating health care policy and he was quoted as saying “At the heart of these rules is an arrogant assumption that the government is better suited to direct women's health care than their providers,” according to reporting from the New York Times. He announced that he intended to issue a preliminary injunction against implementation of the rule, but it wasn’t clear immediately if it would be a nationwide injunction or apply only to Oregon.
Abortion rights groups celebrated the ruling.
5. Second ruling
McShane is not the only federal judge who feels that the Trump administration is overstepping by telling reproductive health providers what they can and cannot say to patients. US District Judge Stanley Bastian in Washington state granted a nationwide injunction on the rule. According to CNN, the Washington Attorney General said "Today's ruling ensures that clinics across the nation can remain open and continue to provide quality, unbiased healthcare to women. Trump’s 'gag rule' would have jeopardized healthcare access to women across the country. Title X clinics, such as Planned Parenthood, provide essential services — now they can keep serving women while we continue to fight to keep the federal government out of the exam room.”
A second judge ruled against the White House.
6. Abortion access in general
This rule is only one facet of the state of abortion in America in 2019. With a more conservative shift in the make up of the Supreme Court, anti-abortion groups are hoping to be able to challenge the landmark 1973 ruling of Roe v Wade that established a legal right to abortion in America. Opponents of the procedure are hoping to spark a legal case that will be heard by the Court and potentially drive sweeping change. A handful of states have recently passed outright bans or restrictions banning abortions that take place after a “heartbeat” can be seen on ultrasound, which is at about six weeks gestation. The BBC points out that six weeks is often weeks before many people even know they are pregnant and experts in fetal medicine will state that what can be seen on ultrasound at that stage isn’t a fully functional heart, it is rather an autonomic electric signal that will later develop into a functional cardiac system. On the other side, the state supreme court in Kansas just ruled that the right to personal autonomy is built into the state’s constitutions, thus barring restrictions on abortion going forward.
Four states have passed bans on abortion as early as 6 weeks of gestation.
Abortion rights will continue to be hotly debated in the coming years.
Rebekah Kuschmider has been writing about celebrities, pop culture, entertainment, and politics since 2010. Her work has been seen at Ravishly, Babble, Scary Mommy, The Mid, Redbook online, and The Broad Side. She is the creator of the blog Stay at Home Pundit and she is a cohost of the weekly podcast The More Perfect Union.