Baltimore Wins Injunction in Title X Gag Rule Case

The city of Baltimore has notched a new – but different – victory in the national docket of court cases challenging the Trump Administration’s implementation of a new rule that would pull federal funding from family planning clinics that make abortion referrals.

The city filed a lawsuit in April challenging the new Title X rules, which would prohibit clinics that receive federal funding from making referrals for abortion, mandate prenatal care referrals for patients seeking abortions, and require providers who offer abortion services or refer patients for abortion services to maintain separate facilities from Title X-funded activities.

While cases in other states have sought and secured nationwide preliminary injunctions over the rule, the City of Baltimore sought a narrower restriction: an injunction to stop the rule from taking effect within the state of Maryland.

In filings, the city said it would suffer “immediate irreparable harm” if the rule takes effect.

“…[T]he City will have no choice but to withdraw from Title X entirely, requiring the City to divert scarce funds from other critical City services, and curtail reproductive health services. The regulations also endanger women’s lives and health by preventing them from receiving complete and accurate medical information, and interfere with the doctor-patient relationship by prohibiting information that medical professionals are otherwise ethically and legally required to provide to their patients,” the city wrote in one filing.

Title X clinics in the city serve more than 16,000 patients each year and the city receives about $1.4 million Title X funding, according to Mayor Bernard C. “Jack” Young’s office.

Late last week, U.S. District Court Judge Richard D. Bennett agreed with the city, ordering the injunction within the state of Maryland as the case moves forward.

In an opinion, Bennett wrote that he would not have been inclined “to join the cascade of nationwide injunctions issued by United States District Judges across the country with respect to many administrative policies of the federal government,” but agreed that a statewide injunction was warranted.

“It is not the role of this Court to become involved in these policy questions. Quite simply, the executive branch of government is entitled to deference with respect to its administrative orders. However, the executive branch of government is not entitled to circumvent by administrative order existing laws passed by the United States Congress. When the executive branch seeks to do so, it must be constrained by the federal judiciary,” Bennett wrote.

Similar regulations were upheld by the Supreme Court in 1988, but never fully implemented and have since been impacted by changes to law passed by Congress.

Among his conclusions, Bennett found that the rule likely violates the Affordable Care Act by creating unreasonable barriers and impeding timely access to health care services, as well as “nondirective” counseling mandates included in annual appropriations bills by requiring the referral to prenatal health care.

“Should Baltimore City choose to comply with the Final Rule in order to retain Title X funding, its medical providers would be forced to contravene their ethical obligations to provide patient-centered nondirective care,” Bennett wrote, supporting the city’s claim of irreparable harm if the rule takes effect. “…Further, if the Final Rule goes into effect, Baltimore City will be impacted by the inevitable withdrawal of other current Title X recipients, which will drive patients to Baltimore City health systems, placing greater demands on their capacity and ability to provide service.”

Title X was established by Congress in 1970 to provide family planning services for low-income Americans. Since the initial regulations, Title X funds have never been allowed to directly pay for or subsidize abortions. The city of Baltimore has participated in the Title X program since its inception in 1970.

Bennett’s ruling is the third preliminary injunction issued against the new rules. The State of Maryland joined a case in Oregon that also lead to one of the injunctions. Additional suits have been filed in California, Washington, and Maine.

The Maryland court’s ruling is important because state residents would not be subject to the regulations even if the other states’ rulings are reversed on appeal, city leaders said.

“This week’s ruling is a win for public health and for Baltimore City residents,” Baltimore City Health Commissioner Dr. Letitia Dzirasa said in a press release. “We know that those most affected by the proposed rule are families with the least access to resources, especially those who are uninsured.  We simply cannot politicize health care services and this preliminary injunction is the right decision for equitably delivered, high quality healthcare.”

The case was brought by the City of Baltimore, with co-counsel from Arnold & Porter Kaye Scholer LLP, the Yale Law School Reproductive Rights and Justice Project, and The Lawyering Project.

“Judge Bennett’s injunction is an important first step in our fight against this Title X regulation, which violates the Constitution and several other federal laws,” stated Solicitor Andre M. Davis. “We will continue to oppose this administration’s unlawful and costly federal regulations that endanger the health of our residents.”

Democrats in the General Assembly passed a bill this legislative session that would use state funding to replace federal Title X family planning dollars, if the gag rule ever takes effect. The federal government was expected to give Maryland about $3.2 million in Title X funding in 2020, according to state budget reports. Gov. Lawrence J. Hogan Jr. (R) allowed the bill to become law without his signature late last month.

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