Editor's Note: On Thursday evening, a federal judge in Yakima, Washington, blocked the president's new Title X family planning rule, less than two weeks before key provisions were set to take effect. Judge Stanley A. Bastian of the United States District Court for the Eastern District of Washington State—the fourth judge to hear a lawsuit against the rule amid a flurry of court hearings this week, and the first to issue a written ruling—granted a national preliminary injunction mere hours after hearing arguments on the case.
United States District Court Judge Michael J. McShane could hardly have been more blunt as he declared he would grant a preliminary injunction against President Donald Trump's new Title X family planning rule this week. In a decision delivered from the bench, he painted the changes—enacted in March—as simply "arrogant."
If allowed to take effect beginning on May 3rd, the new Title X rule could strip millions in federal grant funding from reproductive health clinics, dramatically reduce abortion access across the country, and funnel federal family planning dollars to pro-life groups. The case is one of four lawsuits filed in federal courts across the country—all of which were heard this week, leaving judges with less than two weeks to decide the fate of a $286.5 million program.
The Trump administration's "ham-fisted approach to public health policy ... emphasizes a political issue over Title X's stated goal of reducing unintended pregnancies," McShane told the Portland court on Tuesday, according to press reports. "The final rule would create a class of women who don't get care that's consistent with medical standards," the judge said from the bench—a reference to the young and low-income Americans whom the grant was designed to serve, and the new barriers to accessing abortion and contraception that the rule change would create. Nineteen leading health organizations have warned that the rule "disregards the expertise of the medical and scientific community and evidence-based standards."
McShane's written decision is forthcoming and will indicate the geographic scope of the preliminary injunction: He could grant a national injunction, as plaintiffs have requested, or contain his ruling to specific states. The numerous plaintiffs in that single case, State of Oregon et al v. Azar et al, include the American Medical Association and the Oregon Medical Association, Planned Parenthood Federation of America and two of its regional affiliates, plus the state of Oregon, 19 other states, and the District of Columbia.
In 2017, Title X grants provided more than four million patients with a wide range of sexual health services including contraception, pregnancy testing, pelvic exams, and STD and STI testing. Grantees have long been banned from using the funds to pay for abortion services, but some—including certain Planned Parenthood affiliates and the sole Title X grantee in Maine, Maine Family Planning—offer abortion separately. Plaintiffs in the four lawsuits allege that the new rule would decimate the existing network of Title X clinics as providers withdraw from the program or are forced to close over new requirements to financially and physically separate abortion services (including separate entrances) and ban any referral to abortion services. Pro-choice groups deem it an abortion "gag rule" broadly aimed at defunding Planned Parenthood. The lawsuits argue that the rule discriminates on the basis of sex, violates administrative procedure law including the Affordable Care Act, and violates First and Fifth Amendment rights by creating an undue burden to accessing abortion.
The new rule would also require that all pregnant patients be referred to prenatal care and that minors be encouraged to involve their parent or guardian in sexual health decisions. It would also remove "medically approved" from the description of acceptable contraception, a move that has opened the door to sending Title X grants—created expressly to counter unintended pregnancies—to pro-life groups that don't provide contraception, such as the California-based Obria Group.
"I just love the analogy Judge McShane drew when he asked the Department of Justice counsel, 'Look, if I want a vasectomy and you will only give me referral to a fertility clinic, that's insane, right?' And that's what they're trying to do here" with abortion, says George Hill, chief executive officer of Maine Family Planning, the plaintiff in one of the suits. (Reports from the Oregon courtroom did not indicate how the Department of Justice attorney responded to the judge's hypothetical.)
In its suit, Maine Family Planning v. HHS (Department of Health and Human Services), Hill's organization says the rule could force 17 of its 18 clinics to stop providing abortions, thereby eliminating "85 percent of the abortion clinics in the state."
"We've been the subject of full-body audits from the feds and elsewhere to make sure we're not using federal money for abortion-related services. This additional oversight from HHS is completely unwarranted, and it's something we intend to fight," Hill says. The complaint argues HHS has offered no proof of Title X clinics misusing the grant funds, a key justification for the change.
During a hearing at a district courthouse in Bangor, Maine, on Wednesday, Judge Lance Walker seemed to be "particularly troubled by harms to women, especially in Maine, and harms nationwide," says Emily Nestler, a lawyer with the Center for Reproductive Rights, which is arguing the case. The Title X rules are set to throw the program and its sexual health services into chaos, she says, causing "at least half" of current providers nationally to drop out. HHS reportedly told the court that other providers could step in, a claim Nestler calls "misleading and not supported by any evidence."
"The notion that any providers will step in to serve over two million patients (nationally), or significantly more than that—some unknown group who can cover millions of patients but who has never identified themselves and that the government has never identified either—it doesn't even pass the laugh test," she says.
In all four lawsuits, plaintiffs are asking for a national injunction to prevent the law from taking effect on a state-by-state basis, a potential outcome Nestler calls "unworkable." If one judge grants a national injunction, it will override the other cases, she adds. A suit brought in California (State of California v. Azar et al) was heard last week, and lawyers argued State of Washington v. Azar et al in Yakima, Washington, on Thursday.
"It's outrageous that, in 2019, the federal government is attempting to deny women the comprehensive information and services they need to make personal decisions about their health," Julie Rabinovitz, the chief executive officer of Essential Access Health, California's sole Title X grantee until the Trump administration gave money to the Obria Group, said after the hearing for the California lawsuit in a San Francisco court last week.
In Oregon, the judge peppered lawyers for HHS with questions that went for the jugular: "Do you have any data that this rule will do anything but reduce health outcomes?" he asked. And: "Give me one medical expert." And: "Is it a political motivation to defund Planned Parenthood, regardless of health outcomes?'' And: "Does this defeat the purpose of Title X?"
In response, a Department of Justice lawyer told the court that the rule would not defeat the purpose of Title X, that political motivations aren't "part of the case" (nor does the administrative record suggest any), and that there had been no showing of "irreparable harm" if the rule is allowed to stand.