PORTLAND, Ore. (CN) – A federal judge said Tuesday he would block the Trump administration’s “gag rule” preventing doctors funded by Title X from discussing abortion with their patients before the rule takes effect May 3.
U.S. District Judge Michael McShane called the rule “a ham-fisted approach to public health policy, one that emphasizes a political issue over Title X’s stated goal of goal of reducing unintended pregnancies.”
“At the heart of this rule is an arrogant assumption that the government is better suited to direct women’s healthcare than their providers,” McShane said during a hearing Tuesday. “The final rule would create such a financial strain on medical providers that, ironically, it would create a vacuum that would create substantially more abortions.”
McShane declined to detail his planned ruling from the bench, saying he was “not crazy about this being a national injunction,” but said he would grant preliminary injunctive relief to 20 states.
Oregon, 19 other states and the District of Columbia sued in March claiming a rule issued by the U.S. Department of Health and Human Services governing Title X funding violates the Affordable Care Act by creating unreasonable barriers to appropriate care and interfering with doctor-patient communication on the full breadth of treatment options. The plaintiffs note the restriction is especially ironic given a simple Google search will turn up the very information the rule bars doctors from discussing.
But the government argued Tuesday that the states’ claims were an attempt to “overrule” a 30-year-old Supreme Court decision. In that case, the high court upheld a 1988 Health and Human Services rule barring Title X appropriations from funding programs “where abortion is a method of family planning.”
The Trump administration rule would prohibit health care providers who get funding under the Title X Family Planning Program from directly referring patients to abortion providers, and instead mandate referrals for prenatal care. Health care providers would not be able to discuss options other than those that would “maintain the health of the mother and unborn child during pregnancy” – even if the patient only wants information on abortion.
In cases where the patient seeks abortion information, health care workers can provide a list of providers, none of whom need actually offer the procedure. Abortion providers may make up only half of such a list, and may not be identified as such under the rule.
The states also took issue with the physical requirements imposed by the rule that essentially require any abortion-related care to be financially separate and in a different physical location from the rest of the organization. The states say requirements that Title X-funded projects maintain separate health care records, workstations, personnel and signs are “onerous.”
Alan Schoenfeld argued on behalf of Planned Parenthood and the American Medical Association and said the rule replaces doctors’ ability to provide neutral factual information with a mandate to direct patients toward specific choices.
“If a woman is pregnant and says to her provider, ‘I want an abortion,’ her provider is not allowed to provide information on only that option,” Schoenfeld told McShane. “If a patient says she is interested in terminating her pregnancy, the doctor must point her to prenatal care. This rule forces providers to take additional time in a case when time is of the essence. It carries the sanction of the government, displaces the medical judgment of the practitioner and directs the outcome for the patient.”
McShane asked Assistant U.S. Attorney Andrew Bernie how the rule could maintain the Title X mandate to provide women with “non-directive” counseling.
“Would you say it’s not directive counseling to take a Title X patient who is pregnant, where the care she wants is abortion, that’s what she wants to do, for a doctor to only refer her to prenatal care?” McShane asked.
“If the patient came in and said I want to have an abortion, what the doctor could say is, ‘This is a Title X project. We don’t provide abortions, nor can I refer you for one, but we can talk about your options,’” Bernie said. “As for the referral for prenatal care, I don’t think that’s directive at all. What the doctor can say is, ‘I’m required to refer you for prenatal care.’ Obviously, if you choose to have an abortion, prenatal care is less useful to you.”
Arguing on behalf of the state of New York, attorney Ming-Qi Chu told the judge the new rule is not based on evidence or intended to improve patient care.
“What the states are arguing here is, given what we know now with 50 years of the Title X program, the changes are not rational,” Chu said. “Now, Health and Human Services has determined that these protective measures are no longer necessary but it doesn’t explain why at all. In fact, there is evidence that they are working extremely well and the rate of unplanned pregnancies are at a 30-year low.”
McShane criticized the federal government for not providing sufficient data to support its position.
“If it’s creating more abortions, more unintended pregnancies, more STIs, is that rational?” McShane asked Bernie. “The only record in front of me right now is that the rules are going to have health impacts in the negative. I keep hearing what the agency believes and then I’m hearing data. Doesn’t the agency have some responsibility to look at the data?”
The judge also questioned whether the rule would allow providers to offer patients an “appropriate level of care.”
“Let’s say I want a vasectomy, and the doctor says ‘I can’t provide that, but here’s a list of fertility clinics and some of them provide vasectomies, but I can’t tell you which ones.’ That would seem insane to me, right?” McShane said. "You want doctors to say ‘Here’s a list of prenatal care providers, and some of those providers provide abortions, but I won’t tell you who they are.’ It just seems ludicrous to give people a list of doctors and not tell them who does what.”
Speaking to reporters after the hearing, Oregon Attorney General Ellen Rosenblum discussed the complications created by having similar lawsuits progressing simultaneously in Washington, California, Maine and Maryland. However, Rosenblum said she expects that McShane will issue an injunction that would halt the rule nationwide.
“I don’t know how, without a nationwide injunction, we could really fulfill the judge’s ruling here, which is that there is a violation of the law – more than one,” Rosenblum said. “So it wouldn’t be fair to have doctors and their patients in Texas or Louisiana or Montana or Arizona, which are all states that are not participating in this lawsuit, not have the benefit of this judge’s ruling simply because they were not part of the states who participated in this lawsuit.”
"I just think he wants to give it some thought, maybe consult with the other judges who are part of these lawsuits before he issues a decision,” she added.
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