Washington state Attorney General Bob Ferguson announced Monday the state is leading the challenge to the Trump administration’s final rule that aims to reshape the Title X family planning network.
The plaintiffs will seek a preliminary injunction to block the rule once it is published on the Federal Register, since it is due to take effect 60 days after its posting. The draft final rule was published Friday by HHS’ Office of Population Affairs.
Other state attorney generals are expected to file additional challenges.
As a legal point, Ferguson said the rule—which would boot Planned Parenthood and any other clinic that offers abortions from the network and prohibits direct referrals for abortion—violates the Affordable Care Act’s mandate against limiting what information clinicians can give to their patients.
The rule “unlawfully inserts politics between patients and their doctors,” the attorney general said. He also blasted the regulation for “transparently and arbitrarily” targeting Planned Parenthood.
Planned Parenthood sees about 1.4 million of the 4 million people who use the Title X network.
Ferguson will file the challenge in U.S. District Court for Eastern Washington.
The National Family Planning & Reproductive Health Association, which represents many providers in the Title X network, as well as the state’s Cedar River Clinics, and Planned Parenthood Votes Northwest and Hawaii, announced they will also sue in the same court. The two challenges will likely be consolidated.
The U.S. Supreme Court upheld a parallel Reagan-era rule, calling into question whether a legal challenge would stand up now.
But Washington Assistant Attorney General Jeffrey Sprung argued the legal landscape is different now from what it was in 1988 when the Supreme Court of the United States sided with the government. He pointed to the ACA provision that forbids limits on clinicians’ communications and also highlighted the Administrative Procedures Act, which checks executive agency regulatory authority.
Until a court weighs in, it’s unclear whether, and how soon, the regulation will affect current Title X networks. Clinics, including Planned Parenthood, that received funding in September will run out at the end of next month and the new cycle is set to start April 1.
Early in 2018, the Trump administration shortened funding cycles from three years to just one year—setting the stage for a potential overhaul of the program.
Ferguson told reporters on Monday the rule would bar the state’s clinics that offer almost 90% of Washington’s Title X services.
About 91,000 patients in Washington state received care through the program in 2017.