By Jeffrey H. Brochin, J.D.
The state of Washington demonstrated likelihood of suffering irreparable harm of disruption of existing network of Title X providers if the final rule stands.
A federal district court in the state of Washington granted a motion for preliminary injunction filed by the state and various family planning associations, enjoining HHS from implementing the March 4, 2019 Office of Population Affairs (OPA) final rule (84 FR 7714) governing Title X family planning programs. The new regulations were issued to clarify grantee responsibilities under Title X, to remove the requirement for nondirective abortion counseling and referral, to prohibit referral for abortion, and to clarify compliance obligations under state and local laws, as well as making other changes in Title X family planning regulations (see HHS firm on ensuring no Title X funds go towards abortion, March 4, 2019). However, the court ruled that there was no hurry for the final rule to become effective and that the effective date of May 3, 2019 was arbitrary and unnecessary (State of Washington v. Azar, April 25, 2019, Bastian, S.).
Title X and abortion funding. The Title X statute (42 U.S.C. §300 et seq.) has always provided that none of the funds appropriated may be used in programs where abortion is a method of family planning. The statute authorizes HHS to promulgate regulations governing the program. HHS attempted to create regulations in 1998 to prohibit activities promoting or encouraging abortion as a family method planning, including a counseling or referrals. Although the regulations were upheld by the U.S. Supreme Court, they were suspended in 1993 by presidential memorandum that characterized them as a "Gag rule." Current regulations, found at 42 C.F.R. part 59, were finalized in 2000.
Basis for grant of preliminary injunction. The state argued that Title X grantees are required to follow the Quality Family Planning (QFP) guidelines issued by the Centers for Disease Control and Prevention (CDC) and the OPA, and these guidelines reflect evidence-based best practices for providing quality family planning services in the U.S. They require that counseling should be provided to pregnant patients as recommended by the American College of Obstetricians and Gynecologists and others, including that patients with unwanted pregnancy should be fully informed in a balanced manner about all options, including raising the child herself, placing the child for adoption, and abortion. The state also argued that the laws passed by Congress limit HHS’s discretion in implementing Title X regulations, including Section 1554 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). The ACA prohibits HHS from creating regulations that block access to therapies, including preventing a provider from discussing a full range of treatment options.
The court found that the state presented initial facts that the requirement in the final rule that abortion services be separated from Title X services would force clinics that provide abortion services to maintain separate facilities and finances for Title X programs, and that this would more likely than not increase their expenses unnecessarily and unreasonably. The court further found that the final rule’s "gag requirement" would be inconsistent with ethical, comprehensive, and evidence-based health care, and that the final rule violates Title X regulations, the non-directive mandates and Section 1554 of the ACA, and was also arbitrary and capricious.
The case is No.: 1:19-cv-03040-SAB.
Attorneys: Jeffrey T. Sprung, Washington State Attorney General's Office, for State of Washington. Joseph R. Shaeffer (MacDonald Hoague & Bayless) for National Family Planning & Reproductive Health Association and Feminist Women's Health Center. Andrew Marshall Bernie, U.S. Department of Justice, for Alex M. Azar, II.
Companies: State of Washington; National Family Planning & Reproductive Health Association; Feminist Women's Health Center
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