By Maxine Bernstein
U.S. District Judge Michael J. McShane late Tuesday said he'll grant a preliminary injunction against new federal restrictions that bar taxpayer-funded family planning clinics from referring patients to abortion providers, calling the rule a "ham-fisted approach to public health policy."
Oregon is one of 20 states and the District of Columbia that challenged the Trump administration's changes to the Title X family planning program in U.S. District Court in Oregon, along with Planned Parenthood affiliates and the American Medical Association.
They sought a national injunction. But the judge said he's reluctant to set "national health care" policy and would describe the scope of his injunction in a formal written opinion soon. The U.S. Justice Department urged any injunction apply only to the plaintiffs in this case, noting at least four similar suits pending in other states.
McShane said the so-called "gag rule" -- barring physicians from referring patients who don't want to continue their pregnancies to an abortion provider -- prevents doctors from behaving like medical professionals.
The judge also found that it would create a class of low-income women who couldn't receive a full range of medical care options, foster a "geographic vacuum" in reproductive health care clinics and likely cause an increase in abortions due to more unwanted pregnancies.
He said the rule, which is set to go into effect May 3, represents an "arrogant assumption" that government is better suited to direct health care instead of providers.
The judge said he'd also grant a preliminary injunction to stop another change -- the so-called "separation" rule prohibiting federally funded family planning clinics from being housed in the same place as abortion providers.
The judge's decision from the bench followed three and a half hours of oral argument in federal court in Portland, with Oregon's Attorney General Ellen F. Rosenblum leading off the hearing.
"Title X grant funds are a true safety net for low income individuals and those who would not be able to access care, due to a lack of insurance or other barriers," Rosenblum said. "Put simply, this is an attempt to politicize what has been a successful, nonpolitical public health program for 50 years."
Attorney Andrew M. Bernie, for the federal government, countered that there had been no showing of "irreparable harm" from the rules and nothing in the administrative record to suggest a political motivation for the changes.
The rules are supported by 14 other states and are in line with the 1991 U.S. Supreme Court ruling in Rust v. Sullivan, which upheld prior U.S. Department of Health and Human Services regulations that prohibited employees in federally funded family-planning facilities from counseling a patient on abortion, Bernie argued.
But the judge wasn't swayed by Bernie's argument, particularly the Justice Department's reliance on a nearly 30-year-old Supreme Court case.
"We are looking for good health outcomes. Are these rules going to bring about good health outcomes?" McShane repeatedly asked Bernie.
McShane presented a hypothetical scenario, saying if he went to his doctor and asked for a vasectomy and his doctor referred him only to a fertility clinic, "that would seem insane to you, right?"
The judge said the government hadn't provided him with any data to counter medical experts' assertions that restricting medical professionals from discussing all reproductive health options with patients would result in increases in unwanted pregnancies, use of ineffective contraceptives and increases in sexually transmitted diseases and HIV.
Attorney Alan Schoenfeld, representing the Planned Parenthood Federation of America and the American Medical Association, said all Planned Parenthood providers will leave the Title X program as a result of the "gag rule" as it requires them to practice unethically.
Schoenfeld said the rules would cause a public health crisis, with no other clinics able to fill the gap in certain communities, reducing access to early cancer screening and other health care services for low-income women. Planned Parenthood operates about 40 percent of the Title X clinics in the country.
Bernie, in response, said Planned Parenthood is entitled to its views about medical ethics, but it's "not allowed to set the parameters for the Title X program."
The judge said he didn't want to get into a political discussion, but then asked the Justice Department lawyer, "Is it a political motivation to defund Planned Parenthood, regardless of health outcomes?"
Bernie said the Department of Health and Human Services believes the rules best reflect Section 1008 of the Title X statute, which prohibits abortion as a method of family planning.
Schoenfeld argued there was no example cited of any misuse of Title X funds in the last half century.
"This is a victory for patients and doctors in this country," said Dr. Leana Wen, president of the Planned Parenthood Federation of America, after the judge's ruling from the bench.
But Wen added that since the relief is preliminary, Planned Parenthood "will continue to fight the Trump-Pence administration in court and in Congress to ensure our patients' health and rights are protected."
(c)2019 The Oregonian (Portland, Ore.)