Title X gag rule legal battle resumes, laying groundwork for ‘circuit split’
A rule prohibiting family planning discussions between physicians and patients is in effect again after a California appeals court stayed the injunction. With a different appeals court weighing the same matter, the battle is far from over, a legal expert told Healio Primary Care.
The banned conversations — colloquially referred to as the Title X gag rule — had been allowed after a federal judge issued a temporary injunction earlier this year.
However, “the 9th Circuit stayed the lower courts’ injunctions and thus the rules can go into effect while the parties continue to litigate the issue,” Amanda C. Pustilnik, JD, a law professor at the University of Maryland, explained in an interview.
Reaction to decision
The Trump administration indicated last week’s circuit court ruling helps fulfill a pledge President Donald J. Trump made during his first presidential campaign to limit Planned Parenthood’s services.
“This decision is a major step toward the Trump administration being able to ensure that all Title X projects comply with the Title X statute and do not support abortion as a method of family planning,” HHS Secretary Alex Azar, said in a statement.
The administration’s intent to prohibit the family planning discussions is met with fervent efforts by medical societies to fight for the same conversations.
The ACP indicated that the court of appeal’s “error” could jeopardize patient health.
“By allowing the administration to proceed with the Title X rule, even before the court has ruled on the legality of the rule and the objections raised by ACP and others to it, the government will be inappropriately inserting itself into the patient-physician relationship, and could cause patients to make dangerous decisions regarding preventive care and treatment in the face of uncertainty and lack of resources,” Robert McLean, MD, president of the ACP, said in a statement.
“Furthermore, many clinics may close their doors if denied federal funding, rather than accept the administration’s orders on the services they can provide and the advice and referrals their physicians can provide patients,” he added.
Though the AMA, American Academy of Family Physicians and American College of Obstetrics and Gynecology have not publicly responded to the latest developments, they all previously voiced opposition to the gag rule.
Possible next steps
Pustilnik told Healio Primary Care that these latest developments indicate the Title X gag rule has many different interpretations.
“The fact that the federal district courts in Oregon, Washington and California granted the preliminary injunctions shows that the judges in those cases believed the plaintiffs had a good chance of succeeding on the merits of their claim opposing the administration's new Title X-related rules. But the 9th Circuit’s opinion was clear: In its view, nothing in the administration’s new regulations conflicts with the requirements of Title X or of the Affordable Care Act.”
She added that the legal seesaw regarding the rule is far from over:
“The 9th Circuit soon will be hearing argument on the merits of the case and is highly likely to rule consistently with its decision invalidating the preliminary injunction.
Other federal district and circuit courts may well hold differently. A Maryland district court granted a preliminary injunction as to the Title X rules. That case is on appeal to the 4th Circuit. If the 4th Circuit permits the rules to be enjoined, then there will be a conflict between the circuits — a ‘circuit split’ — and the matter will be headed for the Supreme Court.”
This would not be the first time the nation’s highest court has had to rule on Title X, Pustilnik continued.
“The Supreme Court upheld Title X restrictions substantially similar to these in the late 1980s, and may be inclined to do so again, if only to avoid reversing itself. But worth noting is that the Affordable Care Act has a provision that prohibits government interference in patient-provider communication. The argument that these new rules unreasonably interfere with patient-provider communication may be the best chance for distinguishing this case from the prior one, and getting a different result at the Supreme Court,” she said. – by Janel Miller
Disclosures : Pustilnik reports no relevant financial disclosures prior to publication. Azar is HHS Secretary, McClean is president of ACP.