Advocates Ask Court to Block Trump’s Title X ‘Gag Rule’ (Updated)

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Analysis Law and Policy

Advocates Ask Court to Block Trump’s Title X ‘Gag Rule’ (Updated)

Jessica Mason Pieklo

The Trump administration is trying to cut abortion providers out of Title X family planning programs. Will the federal courts let them?

UPDATE, June 20, 12:23 p.m.: The U.S. Court of Appeals for the Ninth Circuit ruled Thursday that the Trump administration’s “gag rule” could take effect while appeals from states like California, Oregon, and Washington continue. 

Attorneys representing the State of California and reproductive health-care providers will be in federal court on Thursday seeking to block the Trump administration’s new domestic “gag rule” that bans federal family planning dollars from going to health-care providers who perform abortions or refer patients for abortion services. The arguments are the first in a series of lawsuits filed across the country challenging the administration’s changes to Title X, the federal program that provides access to reproductive health-care services for low-income patients.

If not blocked, the rules will take effect May 3.

The arguments come in the case of Essential Access Health v. Azar, as well as a separate challenge heard at the same time brought by the State of California. Plaintiff Essential Access Health is a nonprofit organization and California’s sole Title X grantee. According to court documents, Essential Access Health administers sub-grants to “a diverse array of qualified family planning and related preventive health service providers,” including faith- and community-based education and outreach organizations. Those grantees operate 70 health-care organizations and 356 clinic sites in 38 of California’s 58 counties. One in four of all Title X patients served nationwide is served at a Title X-funded health center in California.

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First proposed in May 2018, the changes to the Title X program would mandate a new “physical and financial separation” between a Title X program and a facility that engages in “abortion activities.” The regulations specify that separation must include separate waiting, consultation, examination, and treatment rooms, as well as separate office entrances and exits. Title X grantees would have to provide different phone numbers and email addresses for those involved in abortion services.

These separation requirements don’t only apply to the small number of Title X providers that actually offer abortion services. They also apply to all Title X-funded projects that give referrals to patients who wish to obtain an abortion, as well as any and all Title X projects that engage in separately funded advocacy or public education activities that the Trump administration determines “promotes” abortion.

To obtain Title X funding, providers would have to open and operate an entirely independent facility to merely provide a referral for abortion care.

Plaintiffs filed their lawsuit in March, shortly after the regulations were officially published. They are asking the court to issue a preliminary injunction to block the regulations from taking effect on the grounds they are unconstitutional, violate current law, and will inflict irreparable harm on Title X patients throughout the nation.

According to the plaintiffs, the administration’s “sweeping” changes to the Title X program undermine clinically established standards of care, interfere with the patient-provider relationship, and contradict a core purpose of the Title X program. They allege that before issuing the changes, the Trump administration failed to meet or convene publicly with leading health-care experts such as the American Academy of Pediatrics, the American Association of Family Physicians, the American College of Physicians, or the National Association of Nurse Practitioners in Women’s Health to discuss the changes and their proposed effects. Yet, according to court documents, the Trump administration held several meetings with proponents of the changes who are not experts in the provision of reproductive health care. That is evidence, the plaintiffs claim, that the changes were not made in good faith and in accordance with the Administrative Procedure Act (APA), the federal law that governs how agencies issue regulations.

The changes also unconstitutionally target and harm individuals for discriminatory treatment based on pregnancy, they claim.

In its written opposition to the preliminary injunction, the Trump administration defends the changes by pointing to Rust v. Sullivan, a 1991 Supreme Court case that upheld earlier changes to the Title X program under the Ronald Reagan administration.

“In essence, Plaintiffs ask this Court to overrule Supreme Court precedent,” the administration states.

At issue in Rust were regulations issued by the Reagan administration in 1988 that prohibited Title X grantees from engaging in “counseling concerning, referrals for, and activities advocating abortion as a method of family planning,” and also required recipients to maintain “an objective integrity and independence from the prohibited abortion activities by the use of separate facilities, personnel, and accounting records.” Before the regulations could take effect, several Title X grantees and doctors who supervised Title X funds sued, arguing the changes were unconstitutional and in conflict with Title X itself. Both the lower court and the court of appeals rejected those claims. In a 5-4 decision, the Supreme Court affirmed and upheld the changes. But subsequent legal challenges kept the rules tied up in court before President Bill Clinton rescinded them in 1993.

Rust might seem like a big hurdle for the challengers to overcome. But the challengers argue this latest fight is not that similar. That’s because the Department of Health and Human Services (HHS), the agency responsible for the Title X changes, is subject to additional requirements related to abortion and health care that were not in effect during the fight over the Reagan administration’s Title X changes.

First, advocates point to language added in 1995 to the spending bill that funded HHS. That language affirms that while federal planning funds cannot be directly used for abortions, pregnancy counseling must be “nondirective”—in other words, it cannot direct a patient to one care outcome over another.

Perhaps most importantly, though, is the existence of the Affordable Care Act: It specifically bars HHS from issuing any regulation that “interferes with communications regarding a full range of treatment options between the patient and the provider” or that “restricts the ability of health-care providers to provide full disclosure of all relevant information to patients making health care decisions.”

Will those differences be enough to doom the Trump administration’s latest efforts to sabotage access to comprehensive reproductive health care for low-income individuals? Perhaps in the short term.

But it’s also undeniable that the Roberts Court is more conservative than its predecessor that upheld similar restrictions in Rust. There’s every reason the Court would vote to uphold Trump’s changes as well. Should that happen, then the only remedy—as in Rust—would be to elect lawmakers to Congress and the presidency who would, again, undo these restrictions.

And that is the ultimate lesson of Rust. For low-income patients, access to comprehensive health care remains subject to the whims of electoral politics. There’s very little, if anything, the courts have been willing to do to stop that.