Brief Calls for Blocking Trump Administration’s Title X Gag Rule

An amicus brief signed by 57 public health scholars supports one of the lawsuits challenging a proposed rule from the Trump Administration that would significantly alter the federal Title X Family Planning program. The brief’s signatories include the American Public Health Association, as well as three George Washington University deans, three chairs of departments in the Milken Institute School of Public Health (Milken Institute SPH) and the School of Medicine and Health Sciences, and fourteen faculty members from both schools.

Title X provides federal grants to cover family planning and other vital preventive health services. The Trump Administration’s so-called “gag rule” is set to take effect in May and would bar clinics from giving pregnant patients full and accurate counseling about their health care choices, including their constitutionally protected choice to terminate pregnancy. The rule also would withhold federal funding from comprehensive reproductive health clinics, such as Planned Parenthood, that cannot meet stringent new physical and financial separation requirements.

The brief was filed in support of one of the pending court cases challenging the rule, American Medical Association et al. v Azar et al. (D. Or.). It calls on the court to block implementation as unlawful under the Administrative Procedure Act (APA).

The brief argues that the rule violates the APA because the Administration failed to consider how such a radical policy shift from prior law would affect access to vital health services. These health services include the most medically effective family planning methods, along with breast and cervical cancer screenings, screening and treatment of sexually transmitted infections, immunizations, and other key services.

The Centers for Disease Control and Prevention (CDC) has identified birth control as one of the 10 most important public health achievements of the 20th century because of its ability to reduce unintended childbearing – a major health risk affecting women, their children, and their families. 

“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 Sara Rosenbaum, JD, the Harold and Jane Hirsh Professor of Health Law and Policy at the Milken Institute SPH and one of the signing scholars and contributors to the brief. “If this rule takes effect, it will have major health care and health consequences. Prior experience tells us that these will include a significant rise in both unintended pregnancies and undetected health conditions.”

The brief explains that the rule would affect providers such as Planned Parenthood which offer comprehensive reproductive health care, implicating access to care for about 2 million patients. It argues that documented evidence shows that rebuilding accessible services in rural and urban medically underserved communities could take years – assuming it is feasible at all.

For example, the brief points out, in Texas, access to reproductive health care has been compromised – both immediately and over the longer term – by that state’s decision to exclude comprehensive providers from its state-funded family planning program. Following the state’s action, enrollment in the Texas program declined by 26 percent, and the percentage of remaining enrollees who actually received care fell by nearly 40 percent. With less access to effective contraception available, evidence showed a causal link as the birth rate among Medicaid patients rose by 26 percent and the number of teen pregnancies increased.

The brief further argues, despite offering no evidence to support its assertion, that the Administration has assumed that the nation’s community health centers will fill the void.  In reality, the brief points out, the evidence points in the opposite direction. Health centers must serve patients of all ages and with broad health needs; a recent nationwide survey reports that only 6 percent of existing health centers can double their current family planning capacity. Furthermore, according to the brief, the Administration’s assumption ignores clear evidence showing the liability problems that could arise for health centers (like other medical care providers) that elect to participate in the Title X program as restructured.  This is because of the rule’s requirement that physicians withhold material information from their patients, effectively mandating professionally substandard care.

Family planning gives women and their partners the ability to control the timing and spacing of pregnancy, thereby lowering the risk of infant, child and maternal mortality, the brief points out. Access is especially important for women with pre-existing health conditions that heighten risks associated with pregnancy and childbirth.

“The Title X gag rule is a big step backward for public health. Access to family planning underpins our entire public health system, and without it Americans will miss out on vital preventive health screenings, care and education,” said Georges C. Benjamin, MD, executive director of the American Public Health Association. “The administration and courts need to consider this risk and safeguard access to these essential public health services.”

The brief, which can be accessed here, was filed April 9. The Deans and public health scholars 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.