By Jeffrey H. Brochin, J.D.
A final rule set to go into effect on May 3, 2019 was found to violate the Affordable Care Act non-interference mandate, nondirective mandate in the Appropriations Act, and Title X.
A federal district court in the state of Maryland has granted the motion for preliminary injunction filed by the Baltimore City enjoining the Secretary of HHS from implementing the March 4, 2019 final rule that revised the regulations that govern Title X family planning programs. Although the executive branch of government is entitled to deference with respect to its administrative orders, it may not via administrative orders circumvent existing laws passed by the United States Congress (Mayor and City Council of Baltimore v. Azar, May 30, 2019, Bennett, R.).
A brief Title X history. In 1970, Congress enacted Title X, the only federal program specifically dedicated to funding family planning services. Title X authorizes HHS to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects. Title X grant money is provided in a lump sum and may be used both to cover the costs of family planning care for those with incomes below or near the federal poverty level and to pay for non-service costs like purchasing contraceptives or training staff. The mechanism has allowed low-income families have free or low-cost access to clinical professional contraceptive methods and devices, and testing and counseling services related to reproductive health.
Title X and abortion funding. The Title X statute has always provided that none of the funds appropriated may be used in programs where abortion is a method of family planning, and the statute authorized the Secretary of HHS to promulgate regulations governing the program, which were adopted in 1971 and remained in effect until 1988 when the Secretary adopted final regulations that drastically altered the landscape in which Title X grantees operated.
The 1988 regulations prohibited Title X projects from counseling or referring clients for abortion as a method of family planning, required grantees to separate their Title X project—physically and financially—from prohibited abortion-related activities, and, prohibited certain actions that promoted, encouraged or advocated abortion as method of family planning.
2000 regulations and impact of ACA. New regulations were finalized in 2000 (42 C.F.R. Pt. 59) revoking the 1988 regulations, and those regulations remain in effect today. Under the 2000 regulations, Title X grantees are required to provide neutral, factual information and nondirective counseling on each of the options, and referral upon request. In 2010, Congress passed the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) which included language that limited the rulemaking authority of HHS. Among other things, the ACA provided that notwithstanding any other provision of the Act, the Secretary of HHS was not to promulgate any regulation that: creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care; impedes timely access to health care services; interferes with communications regarding a full range of treatment options between the patient and the provider; or restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions.
Basis for grant of preliminary injunction. Baltimore City argued that the final rule would violate Affordable Care Act Non-Interference Mandate, the Nondirective Mandate in the Appropriations Act, and Title X itself, and that because it is not in accordance with law, it must be set aside. HHS countered that the Supreme Court’s 1991 decision in Rust v. Sullivan controls, and that the 1988 regulations that were upheld in Rust were materially identical to the conditions contained in the final rule.
The court found that Baltimore City demonstrated that the final rule likely violates the ACA § 1554 by creating unreasonable barriers for patients to obtain appropriate medical care and other barriers to patient and health care provider communications. The court also ruled that the final rule would force Title X projects to steer women away from one particular option— abortion—while directing them toward another option—i.e. carrying the pregnancy to term, regardless of the patient’s stated desires—and that this would violate Congress’s directive in Title X specifying that pregnancy counseling must be "nondirective."
For the foregoing reasons, the court granted the motion for a preliminary injunction as to the March 4, 2019 final rule.
The case is No.: RDB-19-1103.
Attorneys: Andre M. Davis, Baltimore City Department of Law, for Mayor and City Council of Baltimore. Tarra Deshields Minnis, Office of the U.S. Attorney, for Alex M. Azar, II.
Companies: Mayor and City Council of Baltimore
Cases: CaseDecisions AccessNews AgencyNews ContraceptionCoverageNews MarylandNews NewsFeed
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