US judge asserts authority in Title X funding battle

SAN FRANCISCO -- The U.S. judge who temporarily blocked the Trump administration's rules requiring federally funded health care providers to completely separate themselves from offering any type of abortion services from taking effect, emphasized his jurisdiction over the case Thursday.

As various lawsuits challenging changes to Title X policy bounce between multiple courts, U.S. District Judge Edward Chen, whose initial ruling on the matter was reversed, clarified he has the authority to rule on alleged procedural violations when implementing the rules.

The 9th U.S. Circuit Court of Appeals "could say a lot about the [Administrative Procedures Act] claims without the record, but that's one they could not dispose of," he said. "There are various courses available."

Chen did not issue a ruling Thursday. He appeared, however, to entertain arguments to undercut part of the rule's implementation by blocking the requirement mandating health care centers physically separate themselves from facilities providing abortion services.

Justina Sessions, representing named plaintiff Essential Access Health, said "It's an odd situation."

The Administrative Procedures Act requires federal agencies to explain why they are developing or changing regulations and to allow for public input.

In May 2018, the U.S. Department of Health and Human Services altered Title X laws, requiring federally funded health care providers to maintain "physical and financial separation" from facilities that provide abortion services. It was already prohibited for providers to use federal funds for abortions, but the new rules also bar providing referrals for such services.

Health care providers must receive certification indicating they are complying by March 4 to continue receiving federal funding.

Attorneys seeking to maintain California's federal funding for family and reproductive health care services argued the Department of Health and Human Services did not properly engage in the federal rulemaking process. They urged Chen to again block the rule from taking effect, particularly as to the requirement mandating physical separation, given the "arbitrary and capricious" nature of how the rules were promulgated.

The U.S. Department of Justice argued Chen should hold off on making any decision until the 9th Circuit rules.

California is already experiencing the consequences of the Department of Health and Human Services' intent to deny funds, according to Sessions. The requirement that clinics must provide a completely separate facility, including entrances and exits, to discuss family planning options with patients is especially onerous since they would essentially have to build a new structure, she said.

As of January, more than 100 health centers that were formerly a part of Essential Access Health's network in nearly 20 counties have stopped providing family counseling services, according to court filings, which indicated roughly 375,000 fewer California patients received care in 2019 than the previous year.

Rural counties, including Humboldt, Lake and Mendocino, which now have no health centers that provide Title X services, have been most impacted, Sessions continued.

Bradley Humphries of the U.S. Department of Justice resisted arguing about alleged harm as a consequence of the rule. He said it's "not relevant" because Chen already assessed the question and issued an injunction, which was stayed by a higher court.

Responding to concerns about alleged procedural violations, Humphries said "Congress gave broad delegation to the HHS secretary" in rulemaking decisions and that it would be counterintuitive for it to "lock him into a certain legal position always and forever."

Chen said his ruling would be immediately appealable. "Whatever's decided here is probably not the last stop," he said.

Chen granted in April plaintiffs' bid to temporarily block the new regulations, finding they would risk the access to potentially lifesaving health care to more than a million, mostly low-income Californians.

The 9th Circuit vacated the injunction in June, staying three separate rulings from district courts in California, Washington and Oregon.

After a panel of circuit judges denied an emergency request to restore the preliminary injunction, it heard arguments for a second time in September to reconsider its ruling. It has not rendered a decision yet.