If you refuse to tell someone they have the option to do one particular thing because you want to make sure they do something different, are you directing them? Not at all, the Trump administration told the 9th U.S. Circuit Court of Appeals this week.
The administration was defending its gag rule, which forbids recipients of federal Title X family-planning funds from providing referrals for abortion care. Health care providers, who use Title X funds to subsidize reproductive health care and contraception, were arguing that the court should suspend the rule, a Department of Health and Human Services regulation issued in March.
Before the Trump administration established this rule, grantees were already barred from using Title X funds for abortions, but they could still provide abortion care with non-federal funds or refer patients for abortions elsewhere. Now, recipients are barred from providing abortions unless the abortion care and the Title X–funded care occur in completely separate physical spaces, and doctors at grantee organizations can no longer refer a patient who wants an abortion to a facility that offers them.
Hashim Mooppan, a deputy assistant attorney general at the Department of Justice, argued in court on Monday that the resulting constraints on medical practitioners do not violate a 1996 congressional rule that required all Title X–associated pregnancy counseling be “nondirective.” “They say it’s directive counseling if you don’t provide all the options. That’s not what the phrase means,” Mooppan said, according to a report from the Oregonian.
To prove his point, Mooppan offered a bizarre analogy: A guidance counselor who advised a student about some colleges while leaving out others would be nondirective, he said; the advice would only be directive if the counselor told the student which college she should choose over the rest.
Mooppan said this nondirective guidance counselor is similar to a doctor who would refer a patient to a prenatal care provider and an adoption agency, but wouldn’t also refer her to an abortion provider.
Mooppan’s argument reduces the two main options facing a pregnant patient—to continue the pregnancy or terminate it—to roughly equivalent choices that only vary by minor, subjective qualities. But patients aren’t choosing between Rutgers and Penn State. Their choice is embodied, with immediate consequences to their physical and mental health. They’re deciding whether to give birth or have an abortion—the former of which has a mortality rate 14 times that of the latter.
When doctors are forced to make it more difficult for abortion-seeking women to find and access abortion care, they aren’t leaving those patients with a set of other similar-but-not-congruent options. They’re offering their patients the opposite of what they want.
Rather than abide by the new gag order or contort their operations to meet the new physical separation standard, 18 of Title X’s 90 grantees opted out of the program. That small number is somewhat misleading because one of those 18 grantees is Planned Parenthood, a disproportionately large provider. In 2015, Planned Parenthood’s health centers constituted 13 percent of the country’s Title X–funded providers, but it served 41 percent of the country’s Title X contraceptive patients.
In court on Monday, ACLU lawyer Ruth Harlow argued for the reinstatement of an injunction on the rule because of the lapse in health care services patients are facing. The Title X program has either completely ended or left a “network gap” in 28 states since the rule’s establishment, she said, and more grantees may still choose to leave the program as they weigh their options.
The Supreme Court has ruled on a similar gag rule once before, in 1991, after it was proposed by Ronald Reagan. In Rust v. Sullivan, the court upheld the rule. “The government may make a value judgment favoring childbirth over abortion, and implement that judgment by the allocation of public funds,” Chief Justice William Rehnquist wrote in the opinion. In a dissent joined by three other justices, Justice Harry Blackmun argued that the rule was unjustly “manipulating [a woman’s] decision as to the continuance of her pregnancy” by enforcing a “viewpoint-based suppression of speech.”
The Trump administration is arguing that the courts must adhere to Rust v. Sullivan and uphold the new gag rule. But other laws have changed since 1991. As my colleague Mark Joseph Stern pointed out earlier this year, the Affordable Care Act explicitly prohibits HHS from making any rule that “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,” or “impedes timely access to health care services.”
The new gag rule is in such blatant violation of this section of the ACA, it’s as if HHS specifically tailored the rule to breach it. Consider this absurdly byzantine application of the rule, from HHS’s rollout webpage:
If a woman is pregnant, Title X provider may provide a list of comprehensive healthcare providers (including prenatal care providers), including some (but not the majority) who perform abortion as part of a comprehensive healthcare practice. However, this list cannot serve as a referral for, nor identify those who provide abortion—and Title X providers cannot indicate those on the list who provide abortion.
Sliding an abortion-seeking patient the names of a few (not too many!) unidentified possible abortion providers buried in a list of random other doctors does not clearly communicate the “full range of treatment options.” Nor does it lend itself to “timely access” to health care. It’s sending patients on a punitive wild goose chase in pursuit of a time-sensitive, constitutionally protected medical procedure.
Yet the judges of the 9th Circuit didn’t seem ready to freeze the rule in their remarks on Monday. The legality of the rule will most likely be decided at the Supreme Court. It’s an ACA issue, yes, but it raises the more fundamental question of how much a presidential administration should be able to manipulate and impose its ideology on those who rely on its programs: Should the low-income women who get health care services through Title X be able to get a more honest and complete set of information from Google than from their own doctors?
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