Essential Access Health has asked the full 9th Circuit Court of Appeals to reconsider a February 2020 decision that upheld the Trump administration’s Title X regulations, issued May 22, 2018, which have had a dramatic effect on Title X family planning centers. (For more information, see the story titled “Title X Problems Worsen with Recent Court Decision” in the May issue of Contraceptive Technology Update at: https://www.reliasmedia.com/articles/146024-title-x-problems-worsen-with-recent-court-decision?v=preview.)

The 9th Circuit issued its en banc panel decision in February. Essential Access Health asked for a reconsideration on April 9, 2020. The lawsuit, Essential Access Health v. Azar, includes co-plaintiff Melissa Marshall, MD, a family medicine doctor, who practices at a Title X-funded health center in Yolo County, CA. (More information is available at: https://www.essentialaccess.org/content/essential-access-health-v-azar.)

The Trump administration’s changes to Title X include a gag order that prevents healthcare providers and staff from mentioning abortion services to patients, even if asked directly for information. The changes also require Title X sites to create separate physical space for any abortion referral or other activities.

For example, Title X sites cannot provide any brochures that mention abortion in their facility, unless there is physical separation, says Julie Rabinovitz, MPH, president and chief executive officer of Essential Access Health in Berkley, CA. Essential Access Health is the statewide Title X grantee in California. Established in 1970, the organization distributes Title X funding to a statewide network of support services that include birth control, pregnancy and sexually transmitted infection tests, and cancer screenings.

“Even if the brochure doesn’t have an address of where to get an abortion, you can’t have the information out there,” Rabinovitz says. “You can’t offer abortion counseling and referral services, even if you carve that out of your title X program.”

Federally qualified health facilities that perform abortions have always financially separated those services from their other healthcare services, but now they must physically separate the services, as well, she explains.

“Now, they can’t do referrals, even if the staff doing referrals are not paid for by Title X,” Rabinovitz adds. “They have to have separate entrances, separate waiting rooms, separate electronic medical records. It’s cost-prohibitive to build a mirror health center, and nobody will do that.”

The organization’s decision to challenge the court decision is based on past Supreme Court decisions, which did not condone such onerous regulations.

“The panel decision issued earlier this year disregarded Supreme Court precedent and prematurely ruled on the merits of the case without review of the full administrative record,” Rabinovitz said in a recent media statement on the court action. “The facts are clear. The regulations conflict with current law and medical ethics standards, and deny women complete and unbiased information about their pregnancy options. The regulations have also devastated the Title X family planning safety-net nationwide — disproportionately impacting underserved and rural areas, and communities of color.”

According to the Guttmacher Institute, the Title X gag rule has cut the Title X national family planning network’s capacity in half, leaving 1.6 million patients at risk of losing access. One in four Title X service sites left the network in 2019 because of the regulatory changes. (The institute’s report is available at: https://www.guttmacher.org/article/2020/02/trump-administrations-domestic-gag-rule-has-slashed-title-x-networks-capacity-half.)

The Guttmacher Institute’s analysis found that the Title X network’s ability to provide women with contraceptive services was cut by at least 46%, and caused a 100% reduction in Title X services in six states: Hawaii, Maine, Oregon, Utah, Vermont, and Washington.