The Trump administration just proposed a rule that would forbid all health care providers that receive federal family planning funds from providing patients with abortion referral information, even if they request it. These providers must also create a financial and physical separation between their abortion services and all other care. The rule functions as both a censorship regime and a federal TRAP law, imposing onerous requirements that will close hundreds or thousands of clinics and silence doctors who wish to inform patients of all their health care options.
It’s one of the most sweeping federal assaults on abortion providers in decades, and the courts wouldn’t even have to delve into contested abortion jurisprudence to see why the rule is obviously illegal: Congress outlawed these barriers in the Affordable Care Act, which includes language that specifically prohibits the Department of Health and Human Services from silencing doctors or regulating abortion providers out of business. Under any plausible interpretation of the ACA, this new gag rule is unlawful, and the courts should not stand for it.
The new policy takes the form of an HHS regulation that purports to implement the Title X family planning program. Health care providers currently receiving Title X funds can use this money for a broad array of services, including contraception, but not abortion. Under the previous HHS rule, these recipients could still perform abortions, so long as they did not spend federal money while doing so. Doctors could also provide pregnant women with neutral, “nondirective” health care information, explaining their full range of options, including termination.
Organizations that receive this kind of funding, like Planned Parenthood, have adapted to these restraints by segregating funds for abortion and other services. The government already conducts audits to ensure that federal money is not subsidizing abortion. But that isn’t good enough for the Trump administration—even though it could not identify any misuse of Title X funds under the current policy. The new rule would require physical separation between abortion services and all other health care. Clinics would have to set up different “facilities” for abortion, including different examination and waiting rooms, for patients seeking an abortion. They’d have to create different “accounting records,” phone numbers, “personnel,” and “workstations” for abortion services, or risk losing all their Title X funding.
This part of the rule, in other words, is akin to TRAP laws that seek to shutter abortion clinics through needless regulations. Under President Donald Trump’s rule, medical centers that provide both abortion and other family planning services—including contraception, prenatal care, and STI and cancer screenings—would face stark choices. They could build a new clinic, reject Title X money (which they may need to operate), halt abortion services and referrals, or close their doors. In its lawsuit on behalf of Maine Family Planning, the Center for Reproductive Rights estimates that 85 percent of the abortion clinics in the state would have to shut down under the new rule. Maine’s providers do not have the resources to overhaul their medical centers or abandon federal funds.
What happens to those providers that do banish all abortion-related services from their clinics? That’s where the gag rule kicks in. These doctors and nurses are subject to stringent censorship regarding options for pregnant women. They cannot refer patients to abortion providers or even note that termination is a possibility. If a patient asks a question about abortion, the doctor would not be allowed to answer. Even if a patient expresses her desire to get an abortion, the doctor couldn’t counsel her about her choices. Instead, the provider must refer her to prenatal care, where she will receive services she does not want or need.
Organizations that accept Title X funding are also forbidden from “promoting” abortion rights. This expansive ban doesn’t just bar abortion referrals and counseling; it prohibits groups from advocating for reproductive rights with their own money. A provider that participates in Title X could not leave out brochures supporting reproductive rights. It could not encourage “the passage of legislation” to safeguard abortion access or join a lawsuit challenging an abortion restriction. The policy directly suppresses the speech of those who might wish to challenge it.
The Supreme Court upheld a previous iteration of this gag rule in 1991’s Rust v. Sullivan, holding that it did not violate doctors’ right to free speech or patients’ right to abortion access. (That policy, which was more lenient than Trump’s version, never took full effect before President Bill Clinton repealed it.) There’s little hope that today’s archconservative Supreme Court would block the new rule. But health care law has changed a great deal since 1991. Most notably, Congress passed the Affordable Care Act—which includes a provision designed to outlaws policies like Trump’s gag rule. Section 1554 of the ACA expressly states that HHS “shall not promulgate any regulation” that, among other things:
• 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
• restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions
Three lawsuits are already challenging the new rule, which is set to take effect over the next year. (The gag rule begins in May, and the “physical separation” rule applies in March 2020, giving clinics just one year to reconstruct their facilities.) A coalition of 21 states, led by California Attorney General Xavier Becerra, has filed suit in California, as has the Center for Reproductive Rights in Maine. The American Medical Association, joined by Planned Parenthood, sued in Oregon. All three complaints accuse the Trump administration of illegally flouting Section 1554 of the ACA.
It’s difficult to see how any court could disagree. The requirement that health care providers must either reconstruct their clinics or build new ones to segregate abortion services will force many to simply close their doors, leaving their communities without reproductive care. Patients who ask about abortion at a Title X provider will be rebuffed and provided with prenatal care instead. It will be even harder for women to determine which clinics actually perform abortions and which are gagged from even mentioning it. The entire scheme seems designed to create “unreasonable barriers” to treatment by “impeding” a woman’s “timely access” to the “medical care” she deems “appropriate.” By gagging doctors, the rule plainly “interferes with communications regarding a full range of treatment options.” It indisputably “restricts the ability” of providers “to provide full disclosure of all relevant information” to pregnant women.
When a federal agency attempts to implement a rule utterly contrary to law, the courts have a duty to invalidate it. There is nothing ambiguous about Section 1554 of the ACA, and the plaintiffs here should have a slam-dunk case. In fact, skeptics of the administrative state such as Justice Neil Gorsuch should have no difficulty striking down the new rule as the lawless work of unelected bureaucrats eager to disregard the plain text of a law duly passed by Congress. The hiccup, of course, is that the case involves a law that conservative judges hate (the ACA) and a constitutional right they seek to overturn (abortion access).
The challenge to Trump’s TRAP-and-gag rule, then, will be yet another test for judges like Gorsuch—self-proclaimed textualists who refuse to defer to the administrative state. If any of these lawsuits reaches the Supreme Court (and at least one probably will), it should not be mistaken for a garden variety abortion dispute. This case is about who gets to dictate the rule of the law, and whether executive branch bureaucrats can substitute their own anti-abortion policy preferences for the textual commands of a federal statute. This is not a case about the proper interpretation of Roe v. Wade or Rust v. Sullivan. It’s a test of the Supreme Court’s willingness to enforce the ACA.
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