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California files lawsuit over Trump administration’s family planning gag rule

The state is suing the Trump administration over Title X changes, but will it prevail in court?

California Attorney General Xavier Becerra speaks during a press conference at the California State Capitol on March 7, 2018 in Sacramento, California. (Photo Credit: Stephen Lam/Getty Images)
California Attorney General Xavier Becerra speaks during a press conference at the California State Capitol on March 7, 2018 in Sacramento, California. (Photo Credit: Stephen Lam/Getty Images)

California Attorney General Xavier Becerra announced on Monday that he filed a lawsuit against a new Trump administration regulation that significantly alters the nation’s only family planning program by barring abortion providers like Planned Parenthood.

Becerra is the latest attorney general to announce he’ll sue over changes to the Title X program, joining Washington’s Bob Ferguson and the American Civil Liberties Union (ACLU), which is suing on behalf of family planning providers. A coalition of 20 states, including Oregon, New York, and New Jersey, are also expected to file a lawsuit on Tuesday.

“California is standing with women across the nation – not just California,” Becerra said Monday during a press conference about the lawsuit, filed in the U.S. District Court in San Francisco.

The fact that multiple states are suing is especially notable since the Supreme Court previously upheld similar Reagan-era regulations. While many legal experts believe it is unlikely the highest court will ultimately strike down the new rule, the lawsuits provide ample opportunity to at least delay implementation.

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The Title X program already prohibits using federal dollars to pay for abortion. But the new rule, published in the Federal Register this month, bars any Title X-funded clinic from providing abortion services or even referring a patient for abortion. Federally funded family planning clinics must also enforce a physical and financial separation between abortion and any other medical services they provide.

In effect, the change disqualifies Planned Parenthood clinics and any facility that provides abortions from the federal grant program. This rule will affect about one in 10 Title X sites, according to the Guttmacher Institute.

The regulation also removes the requirement that Title X-funded clinics offer comprehensive pregnancy options counseling, including abortion, adoption, and prenatal care referrals. Instead, the program would promote participation from facilities that offer natural family planning or abstinence, even though research suggests abstinence-based programs don’t work. By banning providers like Planned Parenthood, crisis pregnancy centers, which have a history of failing to provide the medical care sought by patients, would have a better opportunity at getting federal dollars.

Additionally, clinicians would be required to document efforts to involve parents whose underage children are pregnant or have sexually transmitted infections.

Taken together, the rule ensures that low-income women and gender minorities will receive substandard reproductive health care compared to those who have private insurance.

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Indeed, people who unwittingly go to Title X clinics may find that their preferred family planning or contraceptive method may no longer be available to them when the rule goes into effect. The rule takes effect in May, but clinics wouldn’t have to comply with the physical separation requirements until March 2020.

The Trump administration published a similar regulation issued under the Reagan administration. The Reagan-era regulations were also challenged by family planning providers and the lawsuit eventually made its way to the Supreme Court. But in Rust v. Sullivan, a 5-4 decision in 1991, justices upheld the administration’s ability to restrict the type of providers participating in Title X and the ban on abortion referrals. The justices basically said the regulations did not violate underlying law or the U.S. Constitution.

Democratic attorneys general likely know that a legal challenge against the gag rule arguing that it violates the First Amendment rights of providers, by preventing them from practicing medicine the way they see fit, is unlikely to prevail.

For that reason, states are challenging Trump’s rule in other ways, including saying the administration is violating the Administrative Procedure Act and the Affordable Care Act, Florida State University law professor Mary Ziegler told ThinkProgress.

The Administrative Procedure Act was written to ensure that the executive branch follows specific rules when it wants to change federal policies. Already, 30 rules issued by the Trump administration have been challenged, and courts have sided against the administration 28 times.

While there are notable differences between between lawsuits challenging the Trump administration’s rule and that of the Reagan administration, the Supreme Court is more conservative today than it was in 1991.

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“The facts are different,” Becerra said in front of press when asked about this on Monday. “The law is different.”

“This is going to be a tough lawsuit to win in the long term, so I think the biggest benefit of it would be more the delay — just in the sense of potentially buying time before things go into effect,” Ziegler said.

What is more likely is that the Trump administration rule gets temporarily blocked and tied up in federal courts, as was the case with Reagan administration changes to the Title X program. The Reagan-era gag rule was never fully implemented, and President Bill Clinton issued a new regulation when he was sworn in.

If appealed, this case, as well as the multistate lawsuit, would both be decided by the Ninth Circuit Court of Appeals, which is conservatives’ least favorite court.

“The 1991 case is sort of a story of success and failure for both sides because abortion opponents wound up winning in the Supreme Court, as did the Reagan administration, but nothing really ever came of it because Clinton rescinded the gag rule not long thereafter,” Ziegler said.

“The flip side of that for abortion rights supporters is there haven’t been lots of favorable signals coming from the courts about this kind of lawsuit. But in the past there has been that kind of delaying tactic — I don’t mean it was just a delaying tactic, it was a good-faith lawsuit — but the delay in and of itself had a positive effect from the standpoint of abortion providers.”

Best case scenario for abortion rights advocates would be if a Democrat were to retake the White House and rescind the administration’s gag rule.

This piece was updated with additional information about a coalition of 20 states that is expected to file a lawsuit on Tuesday over the administration’s changes to Title X.