Washington AG Announces Intent to Sue Over Title X Rule

Washington state attorney general Bob Ferguson said he will be seeking a temporary injunction to prevent the rule from taking effect until the case -- which he said he expects to win -- is decided.

This story was first published Monday, February 25, 2019, by MedPage Today.

By Joyce Frieden, News Editor, MedPage Today

Washington state attorney general Bob Ferguson announced plans to sue the Trump administration over the rule it announced Friday barring physicians and other healthcare providers from mentioning the possibility of abortion to pregnant women seeking reproductive healthcare at any clinic funded under Title X, even if the woman specifically asks about abortion.

"This time, President Trump is inserting his politics between a woman and her healthcare provider. President Trump's Title X rule is unacceptable and unlawful," Ferguson said at a press conference. "The government should not tell patients what medical care is right for them; these sensitive decisions should remain between patients and their medical providers ... We will not allow the federal government to dictate what a provider can or cannot say to a patient."

Under the rule, which is slated to take effect 60 days after it is published (with publication is expected in the next few days), providers at clinics funded under a 49-year-old federal program known as Title X are required to refer pregnant women only for prenatal care even if the patient doesn't want or need it, and are not allowed to discuss abortion, Ferguson said.

Under the program, which serves about 4 million women annually, two-thirds of whom have incomes at or below the federal poverty level. Providers in the program also screen for non-reproductive-related conditions including hypertension and diabetes.

The rule, which covers clinics at 85 sites in Washington state, has two unlawful provisions, Ferguson said. The provision barring providers from discussing abortion violates an Affordable Care Act (ACA) provision requiring full disclosure of all relevant information needed to make healthcare decisions.

This rule also violates a provision from Congress saying all pregnancy counseling provided using Title X funding must be "non-directive" and not push patients to one option or another.

The rule also requires Title X clinics that perform abortion or refer patients to abortion providers to physically separate their abortion facilities from the rest of the family planning clinic, with a separate entrance, separate clinic personnel, separate websites, and separate medical records. "Forcing providers to find or create separate facilities jeopardizes some clinics ... and will force most Washington state healthcare providers to forego Title X funds altogether."

This will leave 11 counties in the state without any Title X providers, leaving some patients to travel hundreds of miles to get family planning care, he said, adding that the rule violates a provision of the ACA that bars anything which creates unreasonable barriers to individuals from obtaining appropriate medical care.

Ferguson said he will be seeking a temporary injunction to prevent the rule from taking effect until the case -- which he said he expects to win -- is decided. Ferguson is planning to bring his case in the federal district court for the Eastern district of Washington, and he said he expects that other organizations will sue as well, including the National Family Planning and Reproductive Health Association (NFPRHA).

Deborah Oyer, MD, medical director of the Cedar River Clinics in Seattle, said her clinic was planning to join the NFPRHA lawsuit when it is filed. "This new policy ... demonstrates clear and dangerous disregard for the role birth control and cancer screening play in peoples' lives," she said.

Erin Berry, MD, medical director of Planned Parenthood of the Greater Northwest and the Hawaiian Islands, called the rule "shameful and dangerous." "It's my job to make sure patients have the very best information available so they can make decisions that are best for themselves," she said. "The Trump/Pence gag rule needs to be challenged; it prevents providers like me from being able to refer patients for safe, legal abortion ... It's unethical and defies the oath I took to take care of my patients."

It's possible that any of the cases people are now talking about filing could make their way to the Supreme Court, Ferguson said, adding that if his cases was elevated to that level, "we are prepared to do that."

In 1988, a similar case, Rust v. Sullivan, went before the high court, in which the plaintiffs argued that a new rule from the Reagan administration that prevented Title X recipients from counseling patients about abortion services violated the First and Fifth amendments to the constitution. The court ruled 5-4 in the government's favor, declaring that Title X was unclear when it came to abortion counseling, so the court would defer to the administration on the issue.

However, several things have changed since that case was decided, Ferguson said, including new statutes passed by Congress that impose new requirements on the Title X program.

"It's frustrating that we have to file lawsuits ... to help women get their healthcare," he added. "It's not the business of politicians to insert themselves in the room with a doctor communicating with a patient. The reason we win case after case against this administration ... is that the cases are simple. This administration flouts the rule of law, and flouts it over and over again."