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The Health 202: Why suing over new family planning restrictions could be hard

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with Paulina Firozi


Abortion rights activists are leaving the door open to suing the Trump administration over new restrictions in the federal family planning program. But they might be stopped short, given the Supreme Court has upheld an even broader regulation on Title X grantees nearly three decades ago.

There was an uproar this week when the Department of Health and Human Services proposed a change to the Title X program, which provides low-income women (and some men) access to family planning services. Under the new regulations, which aren’t yet final, health providers with Title X grants couldn’t use their own funds to perform, promote, support or refer patients to other medical providers who perform abortions.

This move has emerged as the solution for Republicans and President Trump as they aim to siphon taxpayer dollars from Planned Parenthood, since Congress failed in its effort last year to cut the country’s largest abortion provider out of the Medicaid program. Abortion opponents are overjoyed, abortion rights supporters are downcast, and the whole messy fight is likely to go on for some time.

Planned Parenthood serves about 41 percent of the patients who get contraception through Title X, and probably would have to dramatically restructure to still receive the funds or face losing its place in the program. The group has launched an all-out offensive, starting a #NoGagRule campaign on social media and holding a rally in front of the U.S. Capitol on Wednesday.

Other prominent abortion rights groups and Democratic lawmakers — including top Senate Democrat Patty Murray (Wash.) and Sen. Tina Smith of Minnesota (a former Planned Parenthood executive) — are pouring pressure on HHS to retreat from its proposed changes. California Attorney General Xavier Becerra hinted last week he’s contemplating a lawsuit, and yesterday he requested a meeting with HHS and the White House’s Office of Management and Budget about how the changes would affect health care in his state.

“The Trump-Pence administration is seeking to end access to critical, constitutionally-protected reproductive healthcare,” Becerra, a Democrat, said in a statement. “California has made great strides in advancing women’s healthcare and rights. We are not looking to go backwards.”

But there may be little legal recourse for opponents of the Title X changes. That’s because the Supreme Court upheld similar — and slightly broader — restrictions from the Reagan administration in its 5-to-4 Rust v. Sullivan decision in 1991, although those regulations were never ultimately enacted.

In his majority opinion, Chief Justice William Rehnquist not only said the HHS secretary has broad leeway in interpreting the Title X statute (which bans the program’s funds from being used “in programs where abortion is a method of family planning”), but he also didn’t buy the argument that the restrictions violated providers’ free speech rights.

The regulations don’t “significantly impinge upon the doctor-patient relationship,” Rehnquist wrote. “Nothing in them requires a doctor to represent as his own any opinion that he does not in fact hold.”

“The government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized,” Rehnquist added.

Under both the Reagan-era regulations and the ones proposed by Trump, Title X providers must have a “physical and financial” separation from clinics where abortions or abortion referrals are provided. Nor could providers refer patients to other providers who offer abortion services.

But what if a patient seeing a Title X provider has made up her mind she wants an abortion? Under the Reagan regulation, her provider still couldn’t discuss abortion with the patient, period. But under the Trump proposal, the provider in that scenario could provide what’s called “nondirective counseling” about getting an abortion. 

“The Trump regs are less restrictive of speech than the Reagan regs,” said Cathy Ruse, director of the Center for Human Dignity at the Family Research Council, a conservative group that had pushed for the new restrictions. “So the Trump regs are on even stronger footing when it comes to the free speech claims.”

Yet several abortion rights advocates insisted yesterday the legal door could still be open because the Trump regulations on Title X grantees are substantially different from the Reagan regulations, although they didn't detail how.

“This is not the same proposal as the Reagan administration made, and it’s not the same set of issues nor the same jurisprudence,” said Clare Coleman, president of the National Family Planning and Reproductive Health Association.

Coleman said she’s waiting to see a final rule — the version released Tuesday by HHS could change before it’s posted in the Federal Register — but said she doesn’t think it is the same proposal. “We are in a different climate than we were then,” Coleman added.

“The case under Reagan was about a three-year-old policy that never took effect,” said Gillian Dean, Planned Parenthood’s senior director of medical services.

Dean’s right about that: The Reagan regulations were never put in place. By the time the Supreme Court okayed them, George H.W. Bush was in office and he never put them in motion. When President Bill Clinton took over in 1993, his administration put in place opposite rules actually requiring Title X providers to counsel patients about abortion and refer them to providers who do perform abortions.

Now, abortion foes are arguing that the Trump administration is merely bringing Title X back in line with what Congress originally intended — to provide women with access to birth control. Planned Parenthood and its allies hotly dispute that argument, but it might be hard for them to convince the Supreme Court given the precedent already set.

Antiabortion group Susan B. Anthony List:

House Speaker Paul Ryan (R-Wis.): 

The group behind the nation's largest antiabortion rally:

Rep. Joe Kennedy III (D-Mass.):

Sen. Bernie Sanders (I-Vt.):

Sen. Elizabeth Warren (D-Mass.): 

Even if lawsuits over the proposed changes never surface, several legal challenges are simmering over separate wording changes to Title X requirements, which the administration announced in February.

The American Civil Liberties Union and the National Family Planning and Reproductive Health Association are challenging in federal court the new criteria from HHS, which focuses on abstinence over contraception but does require applicants to offer patients more family planning services beyond just “natural family planning methods” or “fertility awareness.” Several Planned Parenthood associations have also filed a companion lawsuit.


AHH: St. Jude Children’s Research Hospital, a leading provider for thousands of cancer-stricken kids, has announced a $100 million plan to expand its outreach around the world, the AP reports. Yesterday, its President James Downing detailed an ambitious goal of influencing the care of as much as 30 percent of children with cancer worldwide in the next decade, saying he hopes the investment will improve access and quality of medical care for many children who might otherwise die.

Hospital officials said more than 80 percent of children with cancer live in low- and middle-income countries, where they lack access to adequate diagnosis and treatment and overwhelmingly die from their disease. But survival rates for pediatric cancers in developed nations exceed 80 percent. “We must address this gap,” Downing said.

OOF: Suicide rates are rising across the United States, and especially so in rural counties. A new CDC study finds suicide rates from 2005 to 2015 were highest in parts of Alaska, Arizona, Northern California, Colorado, Idaho, Montana, New Mexico, Nevada, North and South Dakota, Oregon and Wyoming, our colleague Christopher Ingraham reports. Nationwide, the suicide rate has increased by more than 30 percent since 1999, rising from 10.5 suicides per 100,000 to 13.9 per 100,000 in 2016. 

The animated map above -- generated from data in the report -- “shows a persistent, nationwide increase in suicide rates at the county level during that period,” Christopher writes. “Rates in rural Western counties start off high and rise even higher. A swath of the country running from Oklahoma through the Appalachians stands out, as well.”

The maps also show considerable regional variation that gets missed in state-level figures. "Suicide rates in northern Florida and California, for instance, are considerably higher than in the southern parts of those states," Christopher writes. "Across the Deep South, counties with high proportions of black residents have lower rates of suicide than surrounding areas. Suicide rates tend to be lower in counties with large Hispanic populations and higher in counties with large Native American populations."

OUCH: Dr. O.H. “Bud” Frazier is a renowned heart surgeon who has played a leading role in a long and continued effort to develop a permanent mechanical replacement for the human heart. But Frazier “has been accused of violating federal research rules and skirting ethical guidelines, putting his quest to make medical history ahead of the needs of some patients,” ProPublica’s Charles Ornstein and the Houston Chronicle’s Mike Hixenbaugh report as part of an ongoing investigative series.

According to the report, which examined records and interviews with former physicians from Baylor St. Luke’s Medical Center, Frazier and his team implanted experimental heart pumps in patients who did not meet the standards to be in clinical trials, and he allowed a researcher who was not licensed to practice medicine treat patients in his program. He also failed to disclose consulting fees and research grants, and a former cardiologist from St. Luke’s said he believes Frazier favored experimental heart pumps over proven treatments.

“Over time, several St. Luke’s and Texas Heart executives were made aware of many of these allegations,” Mike and Charles write. “But for years, they took little or no action to rein in a doctor whose work continues to earn the hospital international acclaim, according to records and interviews.”


― The Trump administration is proposing to change federal Medicare payments to hospitals to make it easier for patients to see the prices of their care and procedures. Part of an annual update to Medicare payment rules, the proposed rule revisions call on hospitals to publish their charges online. CMS Administrator Seema Verma says the change would improve hospital price transparency, The Post’s Amy Goldstein reports.

Federal health officials also want to add $1.5 billion for “disproportionate share” payments to help hospitals with higher-than-average expenses for treating patients who cannot pay their bills. The changes also seek to improve hospitals' electronic medical records.

Verma detailed the changes in a conference call with reporters recently, explaining they were part of an effort to “move away from a system that reimburses hospitals for the number of services they provide to one that rewards them for the value of their care,” Amy writes.

“One health policy expert said that posting prices, while useful, is not as significant as insurance companies helping patients understand what portion of a hospital’s charges they would need to pay themselves," she adds. 


— Abortion rights group NARAL is launching a $5 million, 19-state campaign to flip the House to a Democratic majority, specifically targeting Republicans who have voted to restrict abortion but have rarely had serious Democratic challenges, our colleague Dave Weigel reports. NARAL’s spending plan, the largest in the group’s 49-year history, will take it into most of this year’s battleground states: California, Colorado, Florida, Georgia, Illinois, Iowa, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New York, Ohio, Pennsylvania, Texas, Virginia, Washington and Wisconsin.

“This is the moment NARAL was made for,” the group’s president, Ilyse Hogue, told reporters yesterday. “We’re seeing and feeling a deep anxiety that is ginning up enthusiasm to take back the House as a buttress against Trump’s draconian agenda. It’s our job to translate it into wins.”

NARAL's targets will be Republicans who cast low-profile antiabortion votes, often on bills that were throttled by the Senate, but who represent districts with pro-abortion rights voters who often sit out midterm elections, Dave writes. Several, such as Rep. Steve Knight (R-Calif.), Rep. Mike Bishop (R-Mich.) and Rep. Steve Chabot (R-Ohio) are co-sponsors of the “personhood” bill, which would take aim at Roe v. Wade by legally stating that life begins at conception. Others have sponsored the “heartbeat” bill, which would effectively ban abortion after six weeks of pregnancy.

— Mark your calendar for June 12 (or alternatively, plan a beach trip for that day). HHS Secretary Alex Azar will testify about the president's proposal to lower prescription drug costs before the Senate Health, Education, Labor and Pensions Committee, the committee has announced. It'll be the first hearing on Capitol Hill about the multipronged proposal, which Azar has been touting heavily since Trump rolled it out this month. Some of the ideas contained in the plan would require Congress to pass legislation.


― Pfizer will pay the federal government nearly $24 million to settle allegations that it illegally used an independent charity to pay kickbacks to Medicare patients to cover out-of-pocket costs for the company’s prescription drugs. The settlement, announced yesterday by the Justice Department, resolves charges that the company violated the federal False Claims Act between 2012 and 2016, Reuters reports.

The company was accused of using the Patient Access Network Foundation as a cover to pay Medicare patients using three Pfizer drugs. "Pfizer used a third party to saddle Medicare with extra costs," to enable the company to generate more revenue and mask price spikes, the U.S. attorney in Boston said in a statement.

— A few more good reads from the Post and beyond:

Jury recommends $25M in Johnson & Johnson lawsuit (AP)


Congo says confirmed Ebola cases have reached 31; 9 deaths (AP)


‘Time’s Up’: Covered California Takes Aim At Hospital C-Section Rates (Kaiser Health News)


Starbucks Opens Its Bathrooms. Now It Needs to Keep Them Clean and Drug Free (Wall Street Journal)


Coming Up

  • The Brookings Institution holds an event on medical marijuana in the United States on May 29.

Watch former vice president Joe Biden's full speech at the New York Democratic Convention: 

Former vice president Joe Biden delivered a charged speech on May 24, to endorse New York Gov. Andrew Cuomo (D) and rally Democrats around the midterm election. (Video: Reuters)

Samantha Bee with an update on midterm elections and a look at the Trump administration's proposed change to the Title X program:

Stephen Colbert takes a look at the Senate race in Arizona ahead of midterm elections: