Judge hears arguments seeking to block proposed federal rules on health clinics

SAN FRANCISCO -- Attorneys seeking to maintain California's federal funding for family and reproductive health care services warned a judge Thursday of an "exodus" of clinics and providers that administer those services if he does not halt the Trump administration's efforts to curtail abortion programs.

U.S. District Judge Edward Chen of San Francisco appeared hesitant to risk the access to "potentially lifesaving health care," as one plaintiffs' attorney put it, by more than a million, mostly low-income Californians.

He seemed unconvinced by U.S. Department of Justice assertions that competitors will take the place of health care providers who said they would not be able to continue to operate without the Title X funding.

"Just because the final rule doesn't cut people off, it imposes burdens, which some people perceive as ineffective or impeding the ability of medical professionals to carry out what they think is an ethical duty," said Chen, who did not rule on the state's bid for a preliminary injunction.

The legal dispute concerns what constitutes "nondirective counseling" under Title X, a $286 million federal family planning initiative. Programs that get the funding provide a range of services from preventative breast and cervical cancer screenings to treatment for sexually transmitted diseases.

It was already prohibited for the providers to use the funds for abortions, but the newly implemented rules announced last year also bar providing referrals for abortion services.

The judge first asked plaintiffs' attorneys of the most substantial harm that would be incurred if the changes to Title X funding were implemented.

Planned Parenthood, which accounts for 40 percent of the 4,000 clinics nationwide that receiving the federal funding, already stated it would no longer be eligible, according to Michelle Ybarra of Keker, Van Nest & Peters LLP. She said 650 Planned Parenthood associates would be forced to exit the program.

Reproductive and sexual health care outreach and education would also be curbed, which would "directly lead to unexpected and mistimed pregnancies" and "serious complications with childbirth," continued plaintiffs' attorney Anna Rich of the state Department of Justice.

"The complications that will arise with fewer access will end up harming the public," she said, adding the additional costs will most likely be incurred by the state's Medicaid program in the millions of dollars.

Defense attorney James Burnham of the U.S. Department of Justice shot back that the changes to Title X does not directly cut off funding for any organization. He said the state and othe plaintiffs have offered no concrete evidence of irreparable harm since most programs will most likely rather comply than lose the funding.

"Only one program has said they will leave rather than comply," he said. "Anyway, new providers will emerge in compliance with Title X funding."

Chen was skeptical.

"In many rural parts of California, it's tough to find licensed professionals for miles and miles that are able to serve non-English speaking populations," the judge said. "It's not easy for people to step in."

Burnham responded that plaintiffs' attorneys have not offered evidence on the matter, which Ybarra contested by pointing to the multiple friend-of-the-court briefs submitted by interested parties expressing concern over having to close if the funding were cut.

The new federal regulations will take effect May 3 unless Chen issues a temporary injunction. California v. Alex Azar, 19-CV01184 (N.D. Cal., filed March 4, 2019). Essential Access Health Inc., which operates an umbrella of programs providing reproductive health care and received $20.5 million in Title X funding, is a named plaintiff in the case.

Plaintiffs' attorneys argued "nondirective counseling" includes referrals for abortion so long as a comprehensive portrait of options is presented to the patient, while Burnham has maintained there is a "fundamental difference between counsel and referral."

The state Department of Justice also alleged procedural and constitutional violations to how Title X funding was amended.