SAN FRANCISCO (CN) – A federal judge on Thursday cast doubt on the Trump administration’s argument that abortion-related restrictions on federally funded health clinics won’t limit women’s access to health care in poor and rural areas.
Defending the Trump administration’s so-called “gag rule,” which forbids Title X-funded clinics from referring women to abortion services, a U.S. government attorney insisted new health centers would emerge to fill in any gaps left by clinics that shut down as a result of the new restrictions.
“The medical marketplace is as fluid as any marketplace,” Justice Department lawyer James Burnham said.
But U.S. District Judge Edward Chen was not convinced.
“In certain rural parts of California, where it’s difficult to find any doctor for miles and miles able to serve a large non-English speaking population, it’s not so easy that one can just step into the breach,” Chen said.
Chen spent 2 ½ hours grilling lawyers for the U.S. Justice Department, state of California and Essential Access, a nonprofit that administers federal grants for health clinics in California, on whether the Trump administration rule violates free speech protections or the Affordable Care Act and whether it will irreparably harm public health.
Aside from forbidding abortion referrals, the new restrictions also require grant recipients maintain “clear financial and physical separation” from centers that perform abortions. The rule, set to take effect May 3, further requires doctors in federally funded clinics refer all pregnant women to prenatal care, even if those women plan to end their pregnancy.
Lawyers for Essential Access and California say these new rules will not only limit access to abortion but also force family planning clinics and health centers to shutter or cut back on services. That could mean less access to breast and cervical exams, contraceptives and STD screenings for vulnerable populations.
“Access to contraception reduces unintended pregnancies,” said California Deputy Attorney General Anna Rich, citing evidence of an increase in Medicaid-covered births in Texas after the state introduced similar family planning restrictions in 2011.
Essential Access estimates the cost of separating abortion services from its own organization at $325,000 in the first year and $212,500 every following year.
But Burnham argued spending money to comply with federal grant conditions cannot serve as a basis for irreparable harm.
The Justice Department lawyer also disputed claims that the rule violates doctors’ free speech rights. The rule prohibits doctors from referring women to an abortion provider but doesn’t block them from talking about abortion, Burnham insisted.
“The doctor can provide all information relevant to that decision,” Burnham said. “The doctor just can’t provide a referral.”
On claims that the new rule violates a congressional mandate requiring federally funded clinics provide “nondirective” family planning counseling, Burnham said excluding abortion as an option doesn’t render the counseling “directive” or any less neutral.
“I haven’t seen anything that says in order to be nondirective, counseling has to be all-encompassing,” Burnham told the judge.
Representing California, Rich insisted the rule’s prenatal referral mandate contradicts the “nondirective counseling” requirement, which Congress has included in every appropriations bill since 1996.
Essential Access lawyer Michelle Ybarra further contended Health and Human Services Secretary Alex Azar failed to supply a “reasoned analysis” to justify his “stark departure” from prior funding requirements.
Before the hearing ended, both sides requested that Judge Chen stay his decision pending appeal if he decides to rule against them.
Chen replied that he will likely let his decision stand, regardless of whether it favors the Trump administration or abortion rights advocates.
“I’m going to do what I’m going to do,” Chen said.