The Trump Administration’s Title X Rule Will Harm Health Care and Public Health, Amicus Brief Finds

WASHINGTON, D.C. (July 11, 2019) – On July 3, 178 public health scholars, including fifteen deans and associate deans at schools of public health and public policy, and the American Public Health Association filed a “friend of the court” brief in support of the Plaintiff-Appellees in State of Oregon, et al., v Azar, et al. The brief calls on the U.S. Court of Appeals for the Ninth Circuit to uphold the lower courts’ decisions blocking implementation of the Trump administration’s Title X “gag” rule because of the severe impact the rule is projected to have on access to family planning and preventive health services.  

The rule would “gag” physicians by barring them from giving pregnant patients full and accurate counseling about their health care choices, including information about abortion services. Additionally, the rule would withhold federal funding from comprehensive health clinics, such as those sponsored by Planned Parenthood Federation of America, that are unable to meet stringent new physical and financial separation requirements.

The final rule was successfully challenged by multiple states and, to date, all of the trial courts that have considered the rule have overturned it. The Trump administration appealed these rulings. Now, a Ninth Circuit three-judge panel is set to hear oral arguments arising from these appeals. The full Ninth Circuit is also expected to hear an emergency appeal from a separate decision in late June by a three-judge panel that permits the rule to take effect even while the appeal is pending.

The public health deans and scholars argue in the new brief that the trial courts correctly concluded that the Trump administration ignored extensive evidence regarding the impact of the rule on the Title X provider network. The brief also argues that the administration ignored the vast amount of evidence showing the insurmountable barriers to quickly rebuilding a similar network and the detrimental effect that dismantling the existing network would have on patients and public health. This, the brief argued, is the central issue in a rule that affects access to health care for high-risk populations.

“Title X clinics are a lifeline for low-income women with significant health risks, for whom unintended pregnancy is an especially serious health threat,” said Lynn R. Goldman, MD, MS, MPH, the Michael and Lori Milken Dean of the George Washington University Milken Institute School of Public Health (Milken Institute SPH) and one of the amici who signed the brief. “If the administration’s rule is allowed to stand, the public health implications will be enormous because of the rise in unintended pregnancies and the consequences of unintended pregnancy on health.”

The brief presents evidence from implementation of a 2011 Texas policy barring participation in that state’s family planning program by comprehensive providers of reproductive health services. The Texas case, which bears a close resemblance to the policy now pursued nationwide by the Trump administration, resulted in a steep decline in access to care. This decline in turn led to a 35 percent reduction in use of the most effective forms of contraception, a 27 percent increase in Medicaid-funded births, and a 3.4 percent increase in teen births.

The brief also points to the rule’s likely effects on access to critical preventive services, such as screening, counseling and early treatment for sexually transmitted infections including the HIV virus and preventive cancer screening and counseling.

“The Title X program provides needed public health services that prevent and protect patients from serious preventable diseases like cancer and sexually transmitted diseases. It works to ensure that comprehensive family planning services are available to all, which is an essential step in achieving health equity,” said Georges C.  Benjamin, MD, executive director of the American Public Health Association. “The administration’s Title X gag rule must be overturned by the courts to ensure providers are not forced to violate their oath to properly inform their patients about their health. It’s important for public health that everyone receives the whole truth about their health care options.”

The Trump administration has asserted in the preamble to the final rule that it expects community health centers to fill the void in providers resulting from the impact of the final rule. However, the brief points out that Title X requires a more comprehensive scope of family planning services than many health centers currently offer. Furthermore, only 25 percent of community health centers participate in the Title X program, far too small a participation rate to replace the loss of access in hundreds of communities.

Additionally, as the brief points out, community health centers that do choose to participate face serious legal risks, because adhering to the gag rule contravenes the professional medical standard of care. Health centers that allow their clinicians to be “gagged” increase their own medical liability risks. This, in turn, carries important implications for health center’s eligibility for grant funding under their own program and for Federal Tort Claims Act (FTCA) medical liability coverage, since health centers, as a basic condition of receiving grants and qualifying for FTCA, are expected to follow the professional standard of medical care.

The deans and scholars who signed the brief in their individual capacities are faculty members of over 30 different universities across 14 states and the District of Columbia.

The brief, which can be accessed here, was filed July 3. The deans, public health scholars and the American Public Health Association were represented on a pro bono basis by McDermott Will & Emery LLP lawyers: H. Guy Collier, T. Reed Stephens, Amandeep S. Sidhu, Emre N. Ilter, Anisa Mohanty, Sophia Luby, and Emma Chapman.

The Deans and faculty who signed the brief did so in their individual capacities and not on behalf of their universities.