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State Attorneys General and women's health advocates who want to block the Trump administration's new rules for Title X, the federal family planning program, face a major hurdle: the Court Supreme maintained very similar rules in 1991.
These rules were summarily canceled after a change of administration. But the court is probably more conservative than it was 28 years ago.
Nevertheless, those who oppose the rules of the Trump administration say that the ground has changed. They hope to win this time in court – highlighting the protections set out in the Affordable Care Act 2010 and congressional amendments in the mid-1990s in title X bills.
"I do not file a lawsuit if I'm not convinced we will win," Washington State Attorney General Bob Ferguson told reporters on Monday at a press conference. He announced his intention to sue the Trump administration for changes to the program. "We have filed 17 cases against this administration," said Ferguson. "We have not lost a case yet."
The new rules for Title X, released Friday by the Department of Health and Human Services, are aimed primarily at expelling Planned Parenthood from the program – a long-standing goal between abortion and abortion. Currently, no Title X money can be used for abortions. However, conservative groups claim that since many Planned Parenthood affiliates receiving Title X assistance also offer abortions, federal funding for family planning could be unduly mixed with funds used for the procedure.
Planned Parenthood affiliates serve approximately 40% of the program's 4 million patients.
Specifically, Trump's rules would bar family planning providers in almost all cases from sending pregnant women to abortion. It would also override previous regulations requiring providers to give pregnant women unwanted pregnancies "non-directive" advice on all their options. Non-directive counseling means that providers can not encourage or deter women from acting in a specific way. Advocates of women's health, including Planned Parenthood, argue that amending this provision, as the Trump administration wants, would prevent doctors and other providers from giving women unbiased advice, which would be a violation of the law. Medical ethics.
The new regulations would also require providers who also perform abortions to physically and financially separate these facilities from their clinics receiving federal funding.
Planned Parenthood has not specifically announced its intention to sue, but the president of the organization, Leana Wen, had made it clear last week in a press call that "Planned Parenthood could not participate a program that forces our providers to compromise their ethics. "
And several other lawsuits are underway pending the official publication of the rules in the Federal Register, scheduled for next week.
The American Civil Liberties Union has announced that it will take legal action on behalf of the National Association of Family Planning and Reproductive Health, which represents family planning providers and administrators. funded by the state, as well as Cedar River clinics in the state of Washington. The Center for Reproductive Rights has announced that it will take legal action on behalf of Maine family planning providers.
Several other state officials have announced plans to sue, including in New York, Oregon and California.
Proponents of the decision of the administration evoke the case of the Supreme Court of 1991 Rust v. Sullivan as proof that the rules are constitutional. In a 5-4 judgment, the court ruled that very similar regulations enacted by the Reagan administration in 1988 were an acceptable exercise of executive power and did not violate the underlying law or the US Constitution.
Although the rules were followed, subsequent lawsuits meant that they were in effect for only one month before being re-locked and then annulled by President Bill Clinton in 1993.
Alliance Defending Freedom, a law firm opposed to abortion, issued a statement regarding Trump's new Title X rules, including: "The Protect Life rule, upheld by the US Supreme Court, will prevent organizations such as the country's largest abortion company, Planned Parenthood, since funding their abortion activities through the Title X program. "
Opponents of the new rules, however, insist that the situation has changed in the years since the Supreme Court decision. First, argued several members of Congress in a letter to HHS earlier this month, the ministry may have violated the federal law on administrative procedure that governs the development of regulations.
For example, HHS "refused to consider the Title X rule as economically significant, totally ignoring the considerable health costs that the rule would impose – and did not carry out an in-depth analysis of the rule. impact of regulation ".
And while the Supreme Court is more conservative than in 1991, "there are two new developments," Washington Deputy Attorney General Jeff Sprung told reporters; "Two laws passed by Congress impose new requirements."
One of these laws involves the addition of wording to the spending bill that funded HHS in 1995 and was renewed in subsequent years. It reaffirms the prohibition to use family planning funds for abortion, but also states that "any advice regarding pregnancy must be non-directive".
In 2010, the Affordable Care Act was added, including wording prohibiting HHS from regulating "that interferes with communications about a full range of treatment options between patient and provider" or "that limits ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions. "
Leah Litman, an associate professor of law at the University of California at Irvine, said the Supreme Court, now more conservative, would not necessarily accept these arguments, as well as others likely to do so. to be raised.
But there is no doubt, she said, that "the underlying scope of [the Title X program] has changed since 1991.
Julie Rovner is corresponding to Washington for Kaiser Health News, a non-profit news service, which is an independent editorial program of the Kaiser Family Foundation and not affiliated with Kaiser Permanente.