A federal judge in Portland has signaled his intent to block a new Trump administration rule that could significantly restrict low-income Americans from receiving reproductive health care. The federal rule, coming from the U.S. Department of Health and Human Services (HHS), is slated to go into effect on May 3.
US District Court Judge Michael McShane did not issue a formal ruling at the end of Tuesday's four-hour hearing on a national injunction against the rule, brought by the Oregon Department of Justice and 20 other states. However, McShane expressed his clear opposition to the feds' "ham-fisted approach to public health policy" and said he will grant the plaintiffs' injunction within the next few days.
The slated HHS rule would impact any medical clinic that receives funding from Title X—a federal grant program that specifically supports health centers working to decrease the number of unintended pregnancies among low-income Americans. Per federal law, the funds cannot be used to cover an abortion procedure.
Under the new rule, any clinic that receives Title X dollars would be prohibited from educating patients about abortion or referring them to an abortion provider—even if that's the patient's explicit request. Doctors would be allowed to refer women seeking abortions to a prenatal care doctor or an adoption program—alternatives that suggest they don't support their patient's decision to end her pregnancy.
"Adding an option when the patient has clearly indicated that terminating the pregnancy is the choices he wishes to pursue is signaling disagreement," said Alan Schoenfeld, an attorney representing Planned Parenthood, one of many plaintiffs who signed on to Oregon's injunction.
It's almost certain that Planned Parenthood is the intended target of the HHS rule, which was announced by the Trump administration in February. Planned Parenthood clinics receive 40 percent of Title X funding in the country. Since entering the political arena, Donald Trump has routinely promised to defund Planned Parenthood.
That threat is not lost on Oregon Attorney General Ellen Rosenblum, who introduced the state's case Tuesday afternoon.
"We believe [the rule] is an attempt to exclude Planned Parenthood affiliates and other providers that support a woman's right to chose," said Rosenblum. "Put simply, this is an attempt to politicize what has become a successful, non-political public health program for 50 years."
In Oregon, 41 percent of Title X funds go to Planned Parenthood clinics. In total, nearly 50,000 Oregon women rely on Title X family planning programs every year.
Testimony from the American Medical Association, another plaintiff in the case, and numerous national physicians organizations said that the new rule would force a doctor to forfeit their own ethical standards by keeping patients from making informed decisions about their own health. They predicted that many Title X clinics would shutter before forcing their doctors to betray their medical morals.
Thus, the new rule would also lead to fewer reproductive health options for low-income patients who rely on subsidized care.
In his own critique of the rule, McShane pointed to Texas, where a sweeping state rule mandating that abortion clinics make costly, unnecessary building upgrades forced 27 of the state's 42 abortion providers out of business. Before being overturned by the Supreme Court in 2016, this law resulted in a clear delay in women receiving safe, legal abortions (which negatively impacts a women's health), an increase in illegal abortions, and a drop in people getting HIV tests, cancer exams, birth control, and other care provided at places that offer abortions. McShane asked HHS attorney Andrew Bernie how the national policy would be any different.
"Do you have any data that this rule will do anything but reduce health outcomes?" McShane asked.
Bernie argued that since medical experts at HHS made the rule, it's clearly backed by data. But he didn't provide any examples. Bernie said he hadn't looked at the impact Texas' bill had on women's health.
McShane responded with a rhetorical question: "Are health outcomes irrelevant here?"
The feds' main argument rests in a 1991 Supreme Court case, Rust v. Sullivan, in which the court agreed that employees in Title X-funded clinics can't counsel patients on abortion.
As a result of this case, clinics take painstaking measure to prove that Title X funds don't touch programs associated with abortion—and are limited to other reproductive health programs. That's why many abortion providers rely heavily on private donations.
McShane pressed Bernie to cite more recent studies and legal precedents to support HHS' case.
"You're just waving Rust in my face...saying the rules were good then, so they're good now," McShane said.
The dearth of data and research on the feds' end led McShane to ask if the "political motivation" to defund Planned Parenthood was the entire basis of the rule. Bernie argued that the rule wasn't a new idea, and has long been supported by conservative politicians (who, we should note, have been trying to defund Planned Parenthood for decades).
McShane ultimately ruled that the threat to health care for low-income Americans outweighs the feds' allegiance to outdated case law.
"Part of this rule contains an arrogant assumption that the government is better suited to direct the health care of women than their medical provider," said McShane, speaking at the end of the hearing. "The final rule would create a class of women who are barred from receiving care consistent with professional medical standards. The consequences of health outcomes on individual families and communities and states would be severe."
McShane said he plans on granting the plaintiffs the injunction, but isn't certain how many jurisdictions the injunction will cover. He has the option to only grant it to Oregon, or to the 21 states that signed onto the case, or the entire country.
"He’s cognizant of being one judge... who will be potentially declaring that this law should not go into effect accross the entire country," said Rosenblum after the hearing. "This will effect the budgets of every state. I think he’s sweating it a bit."
This Oregon-led case isn't the only federal complaint against the pending rule. California, Washington, Maine, and the City of Baltimore, Maryland have all introduced separate injunctions against the HHS policy. All of them are still waiting for a judge's final decision.
Rosenblum said that McShane may want to discuss the scope of his ruling with those judges before making his final decision.
"He’s being careful and humble and will make the right decision," she said.
McShane has until May 3 to release his final ruling.