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Federal Judge To Block New Trump Administration Rules On Abortion Funding

Oregon Attorney General Ellen Rosenblum. | OREGON DEPARTMENT OF TRANSPORTATION
April 24, 2019

A federal judge in Portland said Tuesday he would grant a preliminary injunction preventing new Trump administration rules that could’ve taken funding away from certain abortion providers from going into effect.

Oregon, 19 other states and the District of Columbia, along with the American Medical Association and Planned Parenthood sued the administration last month over rules the U.S. Department of Health and Human Services planned to put into effect May 3.

“At the heart of these rules is an arrogant assumption that the government is better suited to direct women’s health care than their providers,” U.S. District Court Judge Michael McShane said in his ruling from the bench.

In their lawsuit, Oregon and other plaintiffs asked McShane for a nationwide injunction. McShane said he planned to issue a written ruling in the coming days and stopped short of saying what the scope of that would be.

“A judge from Eugene, Oregon, shaping national health care policy is not what I signed up for,” he said.

The new rules were written by the U.S. Department of Health and Human Services and would affect low-income Americans who get services through Title X-funded programs such as testing for HIV and sexually transmitted infections, as well as diseases like cervical cancer.

The new HHS rules would require a physical separation between Title X-funded programs and facilities in which abortions are performed. They would also prohibit a referral for an abortion. Currently, federal dollars can’t be used to fund abortions.

Providers, like Planned Parenthood, argued the new rules would force them to stop providing services in states like Oregon.

“It would’ve been an impossible burden for us to meet,” said Lisa Gardner, president and CEO of Planned Parenthood of Southwestern Oregon, following McShane’s ruling. “The physical separation would’ve cost us … and we’re not willing to gag our health care providers.”

Gardner said Planned Parenthood provides 41% of all Title X visits in Oregon. In 2017, more than 37,000 people accessed Title X clinics statewide.

“It really was a very potentially devastating access issue for our patients and of course disproportionally affected low-income and minority women in our state,” Gardner said.

In his ruling Tuesday, McShane said what HHS was proposing would set up inequities in the health care system.

“The final rule would create a class of women who don’t get care that’s consistent with medical standards,” he said. “The court does not disagree that the final rule is a ham-fisted approach to public health policy, one that emphasizes a political issue over Title X’s stated goal of reducing unintended pregnancies.”

At one point during oral arguments, McShane asked U.S. Department of Justice attorney Andrew Bernie whether the new Title X rules were an effort by the Trump administration to defund Planned Parenthood.

“Do the underlying motivations matter?” McShane asked.

“I take the court’s concern, but I don’t think that’s part of this case,” Bernie responded.

Throughout the hearing, McShane pointed to what he described as a robust set of data put forth by the plaintiffs and asked Bernie whether the Department of Justice had statistics or medical experts of their own to reference as part of its case for the new rules.

“Has HHS looked at the experience of communities when Planned Parenthood pulled out?” McShane asked.

“I don’t know,” Bernie said.

McShane pointed to issues in Indiana and Texas where he said the record indicated health outcomes were not improved.

“Under these rules are we going to have less HIV testing?” McShane asked Bernie at another point in the hearing.

“I don’t think there will be less,” Bernie said.

Oregon Attorney General Ellen Rosenblum, who led the coalition, said she was pleased with the ruling.

“Every state is affected and every state will benefit by this ruling, I hope,” Rosenblum said after McShane’s ruling. “It’s about doctor-patient relationships throughout the country.”

During the hearing, the Department of Justice noted that 14 states supported HHS’s new rule. They noted McShane’s ruling could cause them injury.