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Nov 23, 2021
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The US Court of Appeals for the Ninth Circuit has long been sensitive to the role of courts in safeguarding individuals from threats to their health and well-being posed by potentially unlawful governmental policy. Thus, it came as no surprise that when the Trump administration issued its final Title X “gag” rule,1 most of the legal challenges were filed in Ninth Circuit trial courts. The rule would compel physicians to withhold essential information from patients regarding termination of pregnancy and would bar funding to any clinic that does not maintain complete physical separation between activities allowed and those (including full counseling and appropriate referrals) that the rule treats as promoting abortion.
In cases involving potentially unlawful government regulations that threaten health, the courts play an extraordinary role because of their power to stop such rules from taking effect while their legality is fully reviewed. This extraordinary power to temporarily halt governmental regulation is known as equity power, which traces its origins to the English Court of Chancery. Equity power plays an essential role in cases such as the Title X legal challenges, since if allowed to take effect prior to full review, the rule potentially could drive away large numbers of providers, with enormous access implications.
Equity power is not boundless; it hinges on certain prerequisites. Challengers must be able to show a likelihood of success on the legal merits—in other words, that their legal arguments have real power. Challengers also must be able to demonstrate real, irreparable injury if the government is allowed to proceed while the case is under review.
In the legal battle over the “gag” rule, three different federal courts in the Ninth Circuit, in three different cases brought by states, professional societies, and nonprofit health care providers,2 used their equity power to prohibit implementation before full trial. They did so after concluding, on a preliminary basis, that the challengers’ legal arguments against the rule were meritorious and, further, that the injury experienced by people and states were the rule to take effect pending the full trial would be irreparable. In their rulings, the lower courts acknowledged the US Supreme Court’s 1991 decision in Rust v Sullivan,3 upholding a virtual carbon copy “gag” rule issued by the Reagan administration. But the courts also concluded that, in the interim, federal law had changed in certain material ways, thereby calling into question Rust’s continued relevance. Furthermore, the courts found, in publishing the new rule, the administration had utterly disregarded a lengthy public comment record focusing in great part on its likely impact on the Title X provider network, access to care, and, ultimately, people’s health; such disregard amounted to a fatal flaw in agency rulemaking.
The trial courts also concluded that, based on the record, the rule likely would have widespread, adverse effects on the existing Title X provider network—not just Planned Parenthood (the largest and best-known Title X provider)—and could seriously undermine the continued participation by health professionals out of both legal and ethical concerns. Provider exodus, in turn, would jeopardize health care for millions of at-risk patients across the country, especially in medically underserved urban and rural areas. This would affect services such as family planning, screening and treatment of STDs, HIV screening, and cervical cancer screening. Irreparable harm would come in the form of delayed or no care, escalating rates of unintended pregnancies, and ultimately, increased rates of maternal mortality, infant mortality, and other adverse health outcomes that flow from the loss of access to services supported by Title X.4 Given the legally meritorious arguments and evidence of irreparable harm to people and states, the lower courts uniformly enjoined implementation of the rule at least pending full trial.
At this point, the Trump administration appealed to the Ninth Circuit, arguing that it be allowed to put the rule into effect immediately, prior to full trial. The administration argued that the earlier Supreme Court decision was legally dispositive, and that there was no likelihood of success on the merits. Since the legal claims had no merit, the administration argued, the trial courts acted improperly in halting implementation of the rule. Furthermore, the government stated, it had a direct interest in halting spending in violation of Title X (even though the record was utterly devoid of any evidence that any Title X funds had been improperly spent on abortion). For their part, the challengers pointed to their strong legal arguments as well as extensive evidence of harm.
To everyone’s astonishment, a three-judge Ninth Circuit panel sided with the government, and the full Ninth Circuit refused “en banc” to review further. On August 19th, the rule went into effect, meaning that family planning providers either now must show compliance or leave the program.
The unanimous three-judge panel’s decision was shocking on two counts. First, they discounted the evidence that the law had indeed changed since Rust, yet offered no analysis to refute the conclusion by the lower courts. The panel simply held that Rust “largely foreclosed” any attempt to challenge the new rule. Even more shocking was the panel’s conclusion that the federal government, not the millions of people who depend on Title X, would suffer greater harm without immediate implementation. The court based this extraordinary conclusion on the fact that “HHS will be forced to allow taxpayer dollars to be spent in a manner that it has concluded violates the law, as well as the Government’s important policy interest . . . in ensuring that taxpayer dollars do not go to fund or subsidize abortions.” In effect, the panel—indeed, the Ninth Circuit as a whole—simply ignored the record, which was replete with strong legal arguments, evidence of irreparable injury, and devoid of any evidence of misspending of Title X funds.
There is much speculation about why the Ninth Circuit took the unusual step of stripping away the protection of the preliminary injunction, given the evidence. We likely will never know. In the meantime, Planned Parenthood departed the program on August 19th. Multiple states also have announced their intent to withdraw, with plans to substitute their own funding for lost grants. Perhaps Planned Parenthood and other providers leaving the program will find alternative funds. But they may not—precisely the reason why the injunction was so critical. Indeed, based on past experience, loss of access is the likely result. In 2011, Texas similarly pushed highly qualified providers out of its family planning program; within a short period of time,5 health care access and health outcomes were seriously compromised for the very women—low income, at-risk, and medically underserved—who seem always to bear the burden of public health tragedies such as this.
Published in 2019 DOI: 10.1111/1468-0009.12421
Sara Rosenbaum is the Harold and Jane Hirsh Professor of Health Law and Policy and founding chair of the Department of Health Policy at the George Washington University School of Public Health and Health Services. She also holds professorships in the Schools of Law and Medicine and Health Sciences. A graduate of Wesleyan University and Boston University Law School, Rosenbaum has devoted her career to issues of health justice for populations who are medically underserved as a result of race, poverty, disability, or cultural exclusion. Between 1993 and 1994, Rosenbaum worked for President Clinton, where she directed the drafting of the Health Security Act and designed the Vaccines for Children program, which today provides near-universal immunization coverage to low-income and medically underserved children. Rosenbaum is the leading author of Law and the American Health Care System (Foundation Press, 2012) and has received many national awards for her work in public health policy. She is past chair of AcademyHealth and a member of the Institute of Medicine. Rosenbaum also has served on the CDC Director’s Advisory Committee and as a Commissioner on the Congressional Medicaid and CHIP Payment and Access Commission (MACPAC), which she chaired from January 2016 through the expiration of her term in April, 2017.
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