By Priscilla J. Smith | Clinical Lecturer in Law, Yale Law School
Another thing that Donald Trump has ruined is the pleasure in saying “I told you so.” The implications of being right these days are pretty horrific in the reproductive health field. Forget abortion for a minute. Readers of this blog know well that the abortion rights outlook in the short term is pretty bleak, unless stare decisis, so called “institutional legitimacy,” and, relatedly, public opinion matter to the Chief. Of course, things could change again with the election, one way or the other.
But abortion is relevant here only as a distraction; Trump and his minions are masters of distraction after all. We also have to keep our eyes on access to contraception. I’m hardly the first to warn that anti-abortion folks are really also coming for your contraception, nor the first to argue that conservatives hide their attacks on contraception in abortion conflicts. See, e.g., Smith, Contraceptive Comstockery. But when the 9th circuit (yeah exactly, the 9th circuit, may it rest in peace) writes an opinion that would result in the elimination of access to contraceptive services for millions of low-income women while including the word “contraceptive” once but the word “abortion” 60 times, it’s time to ring some alarm bells. In a per curiam opinion issued by Judges Leavey, Callahan, and Bea, the Ninth Circuit on Thursday ordered a stay on preliminary injunctions granted against enforcement of new regulations (gag rule/separation requirements) governing Title X, regulations that would close thousands of Title X facilities, resulting in a severe reduction of contraceptive services for low-income women.
The panel draw was a nightmare for the plaintiffs, for sure, and the plaintiffs may yet be successful if they seek en banc review, but it is unclear whether the votes for a reversal exist. Trump has already appointed 6 judges to the 9th, with another on the way. And this shift in the 9th is happening all across the country. According to a Wikipedia count, as of June 19, 2019, the Senate has confirmed 123 Article III judges nominated by Trump: 2 Justices, 41 Courts of Appeals judges, and 80 District Court judges. More are on their way.
For some context here, recall that a bipartisan Congress supported by President Nixon enacted Title X in 1970 to equalize access to voluntary family planning services, giving low-income women the ability to exercise control over their reproductive functions, and thereby their economic lives and health, by offering federally funded access to effective contraception and reproductive health care already available to wealthier women. And Title X has been an enormous success, including in reducing abortions. For example, in 2015, the most recent year for which these numbers are available, the contraceptive care delivered by Title X-supported providers helped women avoid an estimated 822,000 unintended pregnancies, which would have resulted in an estimated 387,000 births and 278,000 abortions. Without the contraceptive care provided by these Title X-funded health centers that year, the U.S. rates of unintended pregnancy and abortion would have been 31% higher, and the adolescent unintended pregnancy rate would have been 44% higher.
Now, in 2019 under the guise of requiring the separation already required between Title X program services and abortion services, the Final Rule that is the subject of the 9th Cir. stay order undermines the equality promise of Title X itself and threatens access to medically accepted vital contraceptive services, allowing the funds to be redirected to those who do not provide contraception but counsel only abstinence or the so-called rhythm method. See Sarah Varney, ‘Contraception deserts’ likely to widen under new Trump administration policy (Sept. 28, 2018) (Obria medical clinics do not provide contraception beyond so-called “natural family planning methods”); Kenneth P. Vogel and Robert Pear, Trump Administration Gives Family Planning Grant to Anti-Abortion Group, N.Y. Times, Mar. 29, 2019 (Title X grant awarded to The Obria Group). Another attempt to limit contraceptive access, the lawsuits filed to undermine the ACA’s contraceptive mandate, also hid behind the specter of abortion. But both projects have the same target–-contraception.
You may be thinking, weren’t these gag rule regs upheld in Rust v. Sullivan, 501 U.S. 173 (1991)? And you aren’t wrong that a 1988 version of the rules was upheld in 1991 against a First Amendment challenge and a claim that the rules at that time were arbitrary and capricious. But the landscape has changed significantly in the last twenty-seven years, as the four trial courts granting preliminary injunctions against enforcement of the new Rule recognized. See California v. Azar, No. 19-CV-01184-EMC, 2019 WL 2029066 (N.D. Cal. May 8, 2019) (Chen, J.); Washington v. Azar, No. 1:19-cv-03040-SAB (E.D. Wash. June 3, 2019) (Bastian, J.), http://bit.ly/2KXgqZa; Oregon v. Azar, 6:19-cv-00317-MC (D. Or. May 6, 2019), Dkt. 152 (McShane, J.) (minute entry summarily denying motion); Baltimore v. Azar, No. 19-1103 (D. Md. May 30, 2019) (Bennett, J.). (For full disclosure, I am one of plaintiff’s counsel in the Baltimore case).
The APA claims here are really strong folks; crazy strong. First of all, two specific statutory provisions, one included in every appropriations bill starting in 1996 and the other adopted as part of the ACA in 2010, mandate that pregnancy counseling in the Title X program be nondirective, see, e.g., Continuing Appropriations Act, 2019, Pub.L. 115-245, 132 Stat. 2981, 3070-71 (2018); see also 65 Fed. Reg. 41,272-73, and prevent the promulgation of any regulation that, among other things, “interferes with communications regarding a full range of treatment options between the patient and provider” and “restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions,” see U.S.C. § 18114.
Moreover, throughout the almost fifty-year history of the Title X program, nondirective full options counseling has been not only the norm, but required. The 1988 regulations were never implemented because in 1991 George H.W. Bush issued a directive essentially rescinding the regs and acknowledging that the gag rule violated medical ethics, an action made official in 1993. In 2000, HHS issued new regulations that officially revoked the 1988 regulations; required “neutral, factual information and nondirective counseling” on all options for pregnant patients, including “pregnancy termination”; and required that non-Title X abortion activities must be ‘separate and distinct’ from Title X activities, but allowing some shared facilities. The Agencies give no explanation for the change in their view of the necessity of full disclosure, a view shared by President Bush I and apparently Bush II who never reimposed the gag rule. Instead, they hide behind Title X’s requirement that its services be separated from abortion services, which as I said is already required by regulation.
Of course, if your agenda was really just about preventing or at least reducing abortions, the last thing you’d do would be to limit contraceptive access. See Reva Siegel, ProChoiceLife: Asking Who Protects Life and How – and Why It Matters in Law and Politics.
No this limit on contraception is just that—a limit on contraception—but clothed in abortion politics. It is designed to enforce the view that sex is for procreative purposes only. A woman who has sex with a man must be willing to accept the possible consequences, no matter her situation, no matter her health, no matter that safe medical treatments are available to allow her to maintain her autonomy, to help her achieve equality in this society that still fights against it. It doesn't get much more regressive than that. Well, that's what we used to think. What's next?
As distressing as the impact of the stay, is the fact that conservatives are hiding behind the abortion debate to attack contraceptive access and getting away with it. In addition to a 9th Circuit opinion practically ignoring the impact on contraception, the media is taking the bait. Most of the reporting is focusing on the implications for abortion from the rule, or mentioning the decimation of Title X services only as a secondary consequence, not the primary focus of the Rule.
There are two additional cases challenging the rule outside the Ninth Circuit, one in Baltimore where an injunction against enforcement of the rules in Maryland still exists, Baltimore v. Azar, No. 19-1103 (D. Md. May 30, 2019) (Bennett, J.), and another on a slower track in Maine. The Baltimore case is on its way to the Fourth Circuit where the government is attempting to stay the preliminary injunction issued by Republican-appointed Judge Bennett. And the Supreme Court awaits.
 Frost JJ, et al., Publicly Funded Contraceptive Services at U.S. Clinics, 2015, New York: Guttmacher Institute, 2017, https://www.guttmacher.org/report/publicly-funded-contraceptive-services-us-clinics-2015.
 Id.; Frost JJ et al., Return on investment: a fuller assessment of the benefits and cost savings of the US publicly funded family planning program, Milbank Quarterly, 2014, 92(4):667–720, https://onlinelibrary.wiley.com/doi/epdf/10.1111/1468-0009.12080.
 The Agencies defend against the nondirective counseling mandate by arguing that “counseling” does not include “referrals,” (which is simply wrong according to medical professionals and the Agencies’ own regulations which include referrals as part of “counseling”). Their only response to the ACA noninterference mandate is to claim that the argument was waived during the notice and comment period, even though commenters specifically complained about the regulations’ interference with physician-patient communications and restriction on providers’ ability to disclose all relevant information to their patients.