Oregon Judge Issues 2nd Nationwide Injunction On Rules For Abortion Providers

By Conrad Wilson (OPB)
Portland, Ore. April 29, 2019 7:04 p.m.

A federal judge in Oregon issued a nationwide preliminary injunction Monday, preventing new Trump administration rules that could have cut off funding for abortion providers from taking effect.

The ruling from U.S. District Court Judge Michael McShane was the second nationwide injunction filed by a federal judge in the Northwest preventing the rules proposed by the U.S. Department of Health and Human Services for Title X dollars from going into effect Friday.


Related: Oregon To Sue White House Over Limits On Abortion Providers

McShane noted in his 32-page ruling, that "scores" of declarations from public health experts and medical professionals "lead to the inescapable conclusion" that the new rules would have "negative health outcomes for low income women and communities."

"It will result in less contraceptive services, more unintended pregnancies, less early breast cancer detection, less screening for cervical cancer, less HIV screening, and less testing for sexually transmitted disease," McShane wrote in his opinion. "HHS's response to these negative health outcomes is one of silence and indifference."

Federal dollars cannot be used for funding abortions. But states often send Title X dollars, intended to help low-income individuals make family planning decisions, to clinics and services that also provide information on abortions. The proposed rules from the Trump administration would stop Title X funding from going anywhere that provides abortions or counsels on abortion services.

Oregon, 19 other states and the District of Columbia, along with the American Medical Association and Planned Parenthood sued the administration over the new rules. Last week, at the federal courthouse in downtown Portland, plaintiffs argued they would have to close their facilities if the rules were implemented, in part for financial reasons, but also because of what some providers described ethical factors.

"Given the chaos and incompetence at the federal level, it’s really key that states step up to protect our values and our citizens from federal policies that are designed to achieve short term political gains," said Oregon Gov. Kate Brown, a Democrat, at a news conference in Salem after the ruling.

The proposed rules would've required abortion providers like Planned Parenthood to have separate facilities that perform abortions and buildings where Title X patients get their care — a policy known as the "separation rule." HHS's new policy would've also prohibited medical professionals from referring patients for an abortion, known as the "doctor gag rule."

Last week, U.S. District Court Judge Stanley Bastian from the Eastern District of Washington State heard a similar case in Yakima and issued a nationwide injunction blocking the rules. Also last Friday, a federal judge in California granted a statewide injunction on the rules.

Oregon Attorney General Ellen Rosenblum said McShane's ruling was the most comprehensive and sweeping.

“This means we have three federal judges on record as saying the Title X rule is essentially illegal," Rosenblum told reporters.

A Planned Parenthood billboard is pictured in Portland, Ore., on March 14, 2019.

A Planned Parenthood billboard is pictured in Portland, Ore., on March 14, 2019.

Alex Milan Tracy / AP Images

In his ruling, McShane described the Trump administration's proposed policy as "madness."

"Indeed, the rule would, among other things, dramatically limit medical professionals from discussing abortion options with their patients and completely prohibit them from referring patients seeking an abortion to a qualified provider," McShane wrote. "It would also require Title X providers to physically and financially divorce health services funded under Title X from abortion services funded from sources other than Title X (the 'Separation Requirement')."

McShane said, at best, the proposed rules were a solution in search of a problem. He said the separation requirement would create a financial strain for providers that would "create a geographic vacuum in family planning that experts warn would lead to substantially more unintended pregnancies and, correspondingly, more abortions."

In his ruling, McShane said the gag rule "prevents doctors from behaving like informed professionals." The effect could keep low-income women from making an informed medical decision, he said.

"At the heart of this rule is the arrogant assumption that government is better suited to direct the health care of women than their medical providers," McShane wrote.

He went on to say that the proposal would "create a class of women who are barred from receiving care consistent with accepted and established professional medical standards."

McShane said a nationwide injunction is appropriate because plaintiffs would be harmed in every state.

But the U.S. Department of Justice criticized the injunction.

"A single district judge should not go beyond the parties before the court in an attempt to block executive branch actions," said Kelly Laco, a DOJ spokeswoman. "The Department of Justice’s position is supported by long-standing Supreme Court precedent and should be upheld."

McShane's ruling maintains the status quo, as the case continues through the courts.

In her remarks in Salem, Rosenblum called the Trump administration's rules "arbitrary" and "cruel."

"Doctors and medical providers around the country who work in Title X clinics will not have to censor what they say to patients," Rosenblum said.

Planned Parenthood provides 41% of all Title X visits in Oregon. In 2017, more than 37,000 people accessed Title X clinics statewide.