Judge blocks Trump admin.'s Title X rule stripping abortion clinics of funding

People attend the March for Life rally in Washington, U.S., January 19, 2018. | (Photo: REUTERS/Eric Thayer)

A federal judge in Washington state issued a preliminary nationwide injunction blocking the Trump administration’s new Title X family planning policy barring funding recipients from promoting or referring women for abortion days before it was to go into effect.

The order comes from United States District Judge Stanley A. Bastian, who on Thursday reasoned that arguments presented by the plaintiffs “are likely to succeed on the merits.”

The state of Washington, the National Family Planning & Reproductive Health Association, and Cedar River Clinics sued to block the new Department of Health and Human Services rule issued in March and scheduled to go into effect on May 3.

Abortion organizations like Planned Parenthood, the nation’s largest abortion provider, and NFPRHA argued that the regulation is essentially a “gag rule” that would prevent women from receiving family planning aid. They fear that the rule will essentially block abortion clinics from receiving Title X funding. 

The Title X program gives out about $286 million annually to programs that provide things like birth control, mammograms (which Planned Parenthood does not offer), and cancer screenings. Planned Parenthood receives about $60 million per year

The judge said the plaintiffs presented the argument that the new policy violates Title X regulations and section 1554 of the Affordable Care Act.

“In so finding, the court has not concluded that Plaintiffs will definitely prevail on the merits, nor has it concluded that they are more likely going to prevail,” the judge wrote.  “The preliminary injunction standard requires neither of these conclusions.”

Four lawsuits have been filed in various states against the policy. Bastian is just now the second judge to rule against Trump’s gag-rule.

On Tuesday, U.S. District Judge Michael J. McShane in Oregon granted a preliminary injunction against the HHS rule and called it a "ham-fisted approach to public health policy.'' That case was filed by Oregon and about 20 others states.

However, McShane has not yet written an opinion but suggested that he was reluctant to set a “national health policy,” suggesting his ruling might not be national in scope.

Bastian’s ruling Thursday finds that the plaintiffs presented facts to demonstrate that they are likely to suffer “irreparable harm” without an injunction and that it could “seriously disrupt or destroy the existing network of Title X providers in both the state of Washington and throughout the entire nation.”

“[T]his network has been carefully knit together over the past 45 years and there is no evidence presented by the Department that Title X is being violated or ignored by this network of providers,” the ruling states.

It should be noted that the National Family Planning & Reproductive Health Association represents over 800 health organizations in all 50 states.

Bastian’s ruling favors the plaintiff’s argument that the ruling will cause Washington and other states “unnecessary costs” due to the “separation rule" requiring abortion organizations to have a "clear financial and physical separation for Title X funded programs from programs and facilities where abortion is a method of family planning."

“Plaintiffs have presented initial facts and argument that the separation requirement in the Final Rule forces clinics that provide abortion services to maintain separate facilities and finances for Title X programs will more likely than not increase their expenses unnecessarily and unreasonably,” Bastian wrote.

Bastian also said the plaintiffs and supporters who filed amicus briefs presented facts to argue that the HHS rule is “arbitrary and capricious” and “reverses long-standing positions of the department without proper consideration of sound medical opinions and the economic and non-economic consequences.”

The Trump administration argued that the HHS policy is justified through the 1988 Supreme court decision in the case of Rust v. Sullivan, where the high court upheld a similar policy that was later ended under Democrat President Bill Clinton.

Bastian criticized the administration for relying on a 30-year-old Supreme Court ruling, suggesting that the ruling was out of date.

Washington Attorney General Bob Ferguson said in a statement that the ruling ensures women with unplanned pregnancies can continue to receive “unbiased healthcare.”

The ruling states that Washington stands to lose $28 million in savings from the loss of federal dollars and showed “that it is not legally or logistically feasible for Washington to continue accepting any Title X funding subject to the Final Rule.”

“Trump’s ‘gag rule’ would have jeopardized health care access to women across the country,” Ferguson argued. “Title X clinics, such as Planned Parenthood, provide essential services — now they can keep serving women while we continue to fight to keep the federal government out of the exam room.”

NFPRHA and Cedar River Clinics were represented by The American Civil Liberties Union.

As Bastian’s ruling is nationwide in its scope, Justice Department spokeswoman Kelly Laco criticized the judge’s decision to “go beyond the parties before the court in an attempt to block executive branch actions.”

“The Department of Justice's position is supported by long-standing Supreme Court precedent and should be upheld," Laco argued.

Part of the plaintiffs’ arguments is that Title X policy already prevents organizations from using funds it receives from being used for abortion programs.

While the ruling has been praised by abortion advocates, pro-life litigators question the way in which the order was issued.

“The same day as a federal district court in Washington heard oral argument, it issued a 19-page order granting a sweeping nationwide injunction against all of the challenged provisions of the Title X Rule based on all the legal theories raised by the challengers,”  Americans United for Life Litigation Counsel Rachel Morrison said in a statement. “The order’s ‘analysis’ consisted merely of conclusory statements that the challengers ‘have presented initial facts and argument’ on each claim without identifying any specific facts or arguments.”

Morrison believes that Bastian’s order did not truly grapple with any of the responses from the federal government and simply rejected them “in a single sentence as ‘dismissive, speculative, and not based on any evidence presented.”

“There was no reasoned analysis for why the district court did not apply the U.S. Supreme Court’s binding decision in Rust v. Sullivan, which upheld similar Title X regulations, other than the fact that the regulations were from 30 years ago and subsequent administrations have issued different regulations in the interim,” Morrison stressed.

“Even though Title X statutorily excludes abortion from its family planning projects and funding, the district court apparently believes that Title X providers have a right to continue to receive taxpayer dollars to support their advocacy and promotion of abortion.”

Follow Samuel Smith on Twitter: @IamSamSmith

or Facebook: SamuelSmithCP

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