Written By Lesley M. Harlem
On Thursday, April 25, United States District Court Judge Stanley A. Bastian granted a nationwide preliminary injunction temporarily blocking the imposition of a “gag rule” that would bar health care providers from performing abortions or referring patients for abortions if the providers are recipients of Title X funding. The rule was scheduled to take effect on May 3.
Title X, also known as the Family Planning program, was enacted in 1970 under President Nixon as part of the Public Health Service Act. Its purpose is to provide individuals with comprehensive family planning and preventive health services by fostering access to contraceptive services, supplies, and information. Last year Title X provided $286 million in funding to organizations that offer services such as birth control, screening for breast cancer and cervical cancer, and screening and treatments for sexually transmitted diseases. These organizations serve roughly four million low-income, uninsured patients each year at more than 4,000 clinics across the country. Planned Parenthood receives nearly $60 million in Title X funding and operates roughly 40% of the 4,000 clinics.
The tension surrounding Title X is due to its treatment of abortion. Since its enactment, funds appropriated for Title X have been explicitly prohibited from being used for abortion services. On March 4, the Trump Administration published a final rule to Title X in the Federal Register further restricting abortion. Most notably, the final rule requires complete financial and physical separation between a Title X program and any service that falls outside of the program’s scope—i.e. abortion. Effectively, this provision would require clinics to have “separate entrances and exits, treatment facilities, and personnel as well as duplicate health care records.”
Additionally, the final rule revokes part of the regulations implemented in 2000 which required Title X programs to provide an abortion referral if requested by a patient. The final rule expressly prohibits recipients of Title X funds from supporting, performing, promoting or referring for abortion—commonly referred to as the “gag rule.” Health care providers may, however, mention abortion in a “nondirective” way, that is “not suggesting or advising one option over another.” Lastly, the rule requires Title X providers to refer pregnant patients to prenatal care programs, regardless of the patient’s wishes or the provider’s professional medical judgment. The final rule was scheduled to take effect on May 3.
A series of three lawsuits were filed in federal district courts in California, Washington, and Oregon opposing the final rule. The first lawsuit was filed by California Attorney General Xavier Becerra in U.S. District Court in San Francisco on March 4, the same day the final rule was published in the Federal Register. On March 5, Washington Attorney General Bob Ferguson along with the National Family Planning & Reproductive Health Association filed a lawsuit in the Eastern District of Washington. Shortly after, a lawsuit joined by 20 states, the District of Columbia, the American Medical Association and Planned Parenthood affiliates was filed in U.S. District Court in Eugene, Oregon.
The consensus among the petitioners in each case is that the final rule is “arbitrary and capricious,” unlawful, and in violation of the Affordable Care Act. The Affordable Care Act prohibits the federal government from imposing a rule restricting “the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions.” The “gag rule” arguably violates this provision because it prevents providers from disclosing and referring patients to abortion, even if the patient requests such information. The Affordable Care Act also prohibits the federal government from imposing a rule that creates “any unreasonable barriers to the ability of individuals to obtain appropriate medical care.” The physical separation requirement allegedly violates this provision because of the unreasonable burden of separation imposed by the provision. The main concern, however, is that millions of women would either be left without health care services because of federal defunding, or, that they would be under-informed in their decision-making.
In order to grant a preliminary injunction, each judge had to find that the respective lawsuit against the Trump Administration “was likely to succeed and that the rule, if not blocked, would cause irreparable harm to the [respective state] and its residents.” California issued a statewide preliminary injunction against both the physical separation requirement and “gag rule,” and Oregon Judge Michael J. McShane has stated that he plans on granting a statewide injunction similar to California’s. Judge Bastian’s injunction is the most far-reaching of the three, as it prevents the rule from taking effect across the entire nation.
The nationwide preliminary injunction is subject to appeal, and if overturned on appeal, the final rule will go into effect. Because federal courts in both Oregon and California have, or will have, statewide injunctions, a reversal of the nationwide injunction will not affect either statewide injunction. Nevertheless, the statewide injunctions are subject to appeal. However, absent a challenge, all preliminary injunctions are in effect until the respective case is formally decided by the District Court where the case was filed.
Ariana Eunjung Cha, 21 States To File Suit To Block Trump Administration’s Abortion ‘Gag Rule’ In Family Planning Program, The Wash. Post (Mar. 4, 2019).
Compliance With Statutory Program Integrity Requirements, 84 Fed. Reg. 7714 (Mar. 4, 2019) (to be codified at 42 C.F.R. pt. 59).
Kate Smith, Trump Administration “Gag Rule” That Would Have Stripped Planned Parenthood Funding Was Just Blocked, CBS News (Apr. 25, 2019, 7:50 p.m.).
Media Release, Oregon Department of Justice, Oregon Leads National Lawsuit Challenging New Title X “Gag Rule” (Mar. 4, 2019).
Mike LaSusa, Trump’s Abortion ‘Gag Rule’ Blocked By Courts, Law 360 (Apr. 26, 2019 11:30 p.m. EDT).
News Release, Washington State Office of the Attorney General, AG Ferguson Files Lawsuit In Yakima Over Trump’s Family Planning “Gag Rule” (Mar. 5, 2019).
News Release, Washington State Office of the Attorney General, Federal Judge Blocks Trump Admin Family Planning “Gag Rule” Nationwide (Apr. 25, 2019).
Pam Belluck, Judge Temporarily Blocks Trump Rule on Abortion Referrals, N.Y. Times (Apr. 25, 2019) .
Press Release, State of California Department of Justice, Attorney General Becerra Obtains Preliminary Injunction Protecting California’s Title X Program (Apr. 26, 2019).
S. Department of Health and Human Services, Office of Population Affairs, Fiscal Year 2019 Program Priorities, (last visited April 30, 2019).
State of Washington’s Motion For Preliminary Injunction, Mar. 22, 2019.
Photo courtesy of The Washington Post