SEATTLE — Attorney General Bob Ferguson today 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. 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.
“Patients should be able to make well-informed decisions based on complete, unbiased information about their health care options,” Ferguson said. “Those decisions must stay between patients and their medical providers — not the federal government.”
“We stand united with Attorney General Ferguson and our state and legislative leaders against this blatant assault on women’s health,” Gov. Jay Inslee said. “Washington has been, and will continue to be, a state that stands with women and their right to safe and legal abortion and reproductive care. We will never allow President Trump or anyone else in D.C. to take those rights away.”
"The Title X rule is designed to destroy our nation’s family planning provider network and deprive millions of poor and low-income people of access to the contraception and other preventive health care they need,” said Clare Coleman, President & CEO of the National Family Planning & Reproductive Health Association, a national organization representing publicly funded family planning providers and administrators.
“NFPRHA is grateful for Attorney General Ferguson’s commitment to protecting the Title X program for Washingtonians and individuals across the country, and is honored to work with the Attorney General as NFPRHA and Cedar River Clinics also file a legal challenge against the administration’s unlawful rule.”
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 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 new rule
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.
The Affordable Care Act includes a provision that prevents the Secretary of Health and Human Services from issuing regulations that interfere in the health care relationship. The provision prohibits several different ways in which the Department of Health and Human Services might try to interfere in this relationship, including restricting “the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions.” Ferguson’s lawsuit asserts the rule violates this provision of the Affordable Care Act.
The rule also defies the requirement set by Congress that “all pregnancy counseling” provided using Title X funds “shall be non-directive” and give patients unbiased information. This means providers must present patients with all options and information and not favor one method over another. This mandate is part of the Consolidated Appropriations Acts, passed annually for the last 22 years by both Democratic and Republican-controlled Congresses.
Title X provides funds for 85 clinic sites in Washington operated by 16 organizations.
Forcing Title X providers to find or create separate facilities to provide or refer for abortion, including medically indicated abortion, jeopardizes some clinics in Washington. Achieving physical separation would be prohibitively expensive for many clinics and would force some out of business. In addition, the rule’s gag and separation requirements will force many providers — including the vast majority of Washington’s Title X-funded clinics — to forgo Title X funding altogether.
As a result, some Washingtonians will need to travel hundreds of miles to receive their family planning care, while some will lose access altogether — particularly the uninsured, low-income and rural women that Title X was designed to benefit most.
In 2017, Washington state received approximately $4 million in Title X funds from the federal government— one-third of Washington’s family planning funds.
Implementing this rule will cause the majority of Title X providers to stop providing Title X-funded services. This will keep thousands of vulnerable Washingtonians from reasonably accessing contraception, cancer and STI screening and other family planning care. The result will overburden the remaining Title X facilities and increase the states’ costs as a result of the foreseeable increase in unintended pregnancies and other preventable health consequences.
In 17 of Washington’s 39 counties, there is only one Title X provider, and that provider also performs abortions outside of its Title X-funded services. If Health and Human Services implements the rule, it will leave these 17 counties and thousands of patients without a Title X-funded provider.
This rule will particularly affect patients in Eastern Washington. Eastern Washington is home to more rural communities, where there is already a shortage of healthcare providers. The gag rule would contribute to this shortage. In all of eastern Washington, which has 20 counties, 11 counties would not have any Title X provider at all. In total, if the final rule goes into effect, the number of Washington counties without a Title X-funded clinic will jump from 5 to 21.
Over 14,000 patients in Washington received Title X-funded services from providers that also performed abortions without using Title X funds in 2017. These patients will be forced to find a new provider, if one is available.
Assistant Attorneys General Jeff Sprung, Kristin Beneski and Paul Crisalli are handling the case for Washington.
Attorney General Ferguson has previously taken on the Trump Administration in an effort to protect women’s reproductive rights. Ferguson joined three other attorneys general in July to urge the Trump Administration to withdraw the proposed rule. Last year, Ferguson filed a lawsuit to block the Administration’s rules undermining women’s access to contraception. Two federal judges temporarily halted the rules’ implementation in separate cases across the nation.
This will be Ferguson's 34th lawsuit against the Trump Administration, and he has not lost a case. Ferguson now has 18 legal victories against the federal government since President Trump assumed office. Nine of those cases are finished and cannot be appealed. The Trump Administration has appealed or may appeal the other six, which include lawsuits involving Dreamers, 3D-printed guns and the transgender military ban.
The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.