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Washington AG to sue Trump over abortion policy

Staff Writer |
Attorney General Bob Ferguson announced he will file a lawsuit in the Eastern District of Washington State challenging the Trump Administration’s “gag rule” that impacts federal funding for reproductive healthcare and family planning services.

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The rule permits Title X providers to withhold information from patients about their healthcare options, bars them from referring patients for abortion care, and requires Title X clinics to physically separate abortion care and referrals from their services funded by Title X.

The “gag rule” will force out of the program professionals who provide nearly 90 percent of Title X family planning services to Washington patients, keeping thousands of vulnerable Washingtonians from reasonably accessing contraception, cancer and STI screening and other family planning care.

In Washington, 91,284 patients received care through Title X in 2017.

More than half of these patients were at or below the federal poverty line.

The Washington Department of Health estimates that services provided to these patients prevented over 18,000 unintended pregnancies and over 6,000 abortions, resulting in savings for the state of more than $113 million.

On Feb. 22, the Trump Administration released the rule affecting family planning providers who accept Title X funding.

Title X is a federal grant program enacted in 1970 that helps ensure access to affordable, preventative reproductive health care.

The rule becomes effective 60 days after it is published in the Federal Register, which will happen within a week.

Congress enacted Title X in an effort to reduce the rate of unintended pregnancies and break the cycle of poverty ensnaring women who were unable to pay for contraception.

Title X programs serve an estimated 4 million women annually across the United States.

More than two-thirds of these women have incomes at or below the federal poverty level.

In addition to family planning care, Title X providers also screen for high blood pressure, breast cancer, diabetes, STIs and depression.

For the four out of 10 women who receive contraceptive care from Title X-funded and other similar facilities, this is their only source of healthcare.

Regardless of the new rule, providers are not allowed to use Title X funding for abortion services.

All Title X-funded providers that also offer abortion services must separate these services financially from the Title X funding they receive.

The rule makes two major unlawful changes to the Title X family planning program.

First, it imposes a “gag” on Title X providers that prohibits them from referring their patients to abortion providers and authorizes them to provide only biased, one-sided information about carrying the pregnancy to term.

The “gag” provisions violate statutory requirements, approved annually by Congress since 1996, that all pregnancy counseling in a Title X-funded clinic must be non-directive.

Under the rule, providers may refuse to give information regarding abortion to patients, regardless of the patient’s wishes or medical needs.

This “gag” provision is set to go into effect 60 days after the rule’s publication.

The rule compels Title X providers to coerce each pregnant patient into a prenatal care program, regardless of the patient’s wishes or the provider’s medical judgment, going so far as to dictate that Title X projects “shall” refer all pregnant patients to prenatal care providers.

If a patient asks for a referral to an abortion provider, Title X providers may only provide patients with a list of primary care providers with no indication of which ones provide abortions.

The list must include providers who do not perform abortions, and cannot include any providers who are not primary care providers, such as Planned Parenthood.

Title X providers may also refuse to provide referrals, even if a patient expressly indicates interest in an abortion.

Under the rule, a referral is only required in a medical emergency, but not for other medical reasons.

Second, it requires clinics that also provide any abortion care or referrals to create a physical wall between their family planning functions and their abortion services, requiring separate entrances and exits, treatment facilities, and personnel as well as duplicate health care records.

The physical separation requirements will go into effect one year after the rule publication date.

This physical separation provision transparently and arbitrarily targets Planned Parenthood.

If the new rule goes into effect, Planned Parenthood stands to lose over $3 million in funding.

The organization serves 88 percent of all Title X patients in Washington.

The lawsuit includes statutory and constitutional arguments.

The lawsuit asserts that the rule:

- Violates a provision of the Affordable Care Act that that protects providers and patients from government interference in the health care relationship;

- Unlawfully ignores Congress’ clear direction that federally funded pregnancy counseling be non-directive;

- Violates the federal Administrative Procedure Act by contradicting regulations that have governed Title X for almost 50 years, without sufficient justification — an arbitrary and capricious action;

- Violates physicians’ constitutional rights to free speech; and

- Violates women's constitutional freedoms protected by Roe v. Wade.

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