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| Friday, Feb 21, 2020
abortion funding rule
Photo: Blogtrepreneur/WMC 2.0.

 

SAN FRANCISCO – On March 4, California health clinics funded by federal grant dollars under the Title X family planning program must physically and financially sever abortion from the rest of their services under an abortion funding rule issued by the Health and Human Services Department.

On Thursday, the state of California and Essential Access Health, the statewide Title X grantee for California, asked a federal judge to stave off the new regulations, arguing that the effect would imperil the health care of thousands of low-income women who rely on these clinics.

The abortion funding rule faces multiple state challenges, including Maryland, where a federal judge blocked it from taking effect in a ruling earlier this week. Another federal judge will hear arguments in a similar lawsuit brought by Washington state next week.

In San Francisco, U.S. District Judge Edward Chen issued a preliminary injunction against the rule in April of last year, which was stayed by a three-judge panel of the Ninth Circuit Court of Appeals.

The full Ninth Circuit heard arguments in September on whether to overturn that stay, and its pending decision will be moot if Chen finds the government promulgated the rule without a good explanation as to why it was necessary.

Department of Justice attorney Bradley Humphreys said the department was concerned about the public’s perception that abortions are being funded with federal grant money.

“But there is nothing in the record at this point that justifies that perception,” Chen said.

Humphreys said as unfounded as that perception may be, the HHS has an interest in ensuring the integrity of the program.

“In order to maintain public support for the Title X program, addressing those perception issues is important,” he said.

Enacted in 1970 under President Richard Nixon, Title X of the Public Health Service Act provides birth control and other reproductive health care services to low-income Americans.

Clinics funded under Title X are prohibited from providing abortions under §1008 of the statute, but under revisions made by the HHS in 2000, health care providers could make, upon request, a “neutral presentation” of information about abortion and make a referral to an abortion clinic as long as they didn’t encourage or promote abortion.

The new Title X abortion funding rule now forbid clinics from making abortion referrals and requires that they maintain “clear financial and physical separation” from centers that perform abortions. This means maintaining separate financial accounts, medical records, facilities and personnel. Clinics are also required to refer women for prenatal care, even if they intend to end their pregnancies.

But Humphreys said the rules are less restrictive than those under the Reagan administration, which banned clinics from even counseling patients on abortion. Chen pointed out that it wasn’t much of a change.

Lawyers for California and Essential Access Health said the new rules are even more burdensome than the ones from 1988, which didn’t require separate building entrances and medical records.

No matter, Humphreys said, as the U.S. Supreme Court upheld the 1988 regulations in Rust v. Sullivan, holding they were a “permissible interpretation” of the Public Health Service Act, under Chevron deference, a Supreme Court doctrine where courts generally adhere to an agency’s interpretation of a statute that is ambiguous.

“Even with Chevron deference an agency’s interpretation needs to be reasonable,” said attorney Justina Kahn Sessions with Keker Van Nest, who argued on behalf of Essential Access.

“They cite Rust, which is older but somewhat similar, why isn’t that enough?” Chen asked.

Sessions said the high court merely ruled that the government’s interpretation was not impermissible, but that it wasn’t the only way the statute could be construed.

For Chen, whether the government acted arbitrarily and capriciously — and therefore illegally — seems to hinge on whether the rule is an interpretation of the Public Health Service Act, in which case he may be bound by Rust, or an implementation of the statute, which may allow him to consider outside factors.

He said other Supreme Court cases like Encino Motorcars v. Navarro and FCC v. Fox Television Stations, Inc. will be instructive. Both cases involved federal rule-making and require that agencies demonstrate good reasons for new policies.

If he decides to grant summary judgment in favor of California and Essential Access Health, Chen could carve out the physical separation requirement. He seemed to be leaning that way, since he opened the hearing by asking Sessions about the “real-world impact” of the March 4 deadline.

In an interview outside the courtroom, Sessions said her client would prefer that Chen vacate the entire rule.

For now, they’ll settle for a partial invalidation.

“For us, that would be significantly better than no relief at all,” she said.

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