These Three Challenges to Trump’s Domestic Gag Rule Could Save Title X

Imagine entering a place as trusted as your doctor’s office and not getting all the facts.

(Lorie Shaull / Creative Commons)

For decades, federal law has provided for millions of women served by Title X the ability to access complete and accurate information on, and referrals for, all their pregnancy options—including contraception, prenatal care, adoption and safe and legal abortion. The program provides reproductive healthcare services to more than 3.9 million people, 87 percent of which are women, through funded clinics and healthcare facilities. 

But in February, the administration released a final rule that implemented drastic changes to the program. Healthcare providers within the Title X program are now banned from providing referrals for some types of requested health services. While the new rule allows them to give patients counseling and information, practitioners are no longer required to do so regarding certain referrals, even when explicitly requested by a woman.

Many policymakers and physicians are calling the regulation a “gag rule” that harms women’s health. This rule change infringes on the ability of a healthcare provider to offer the best possible care. Without knowing all our options, how can women make the best choices for our health? Worry and fear due to unanswered questions have no place in the exam room.  

It’s been six months since we started this latest fight for women’s access to reproductive healthcare. Luckily, the fight is not over. Litigation working through the judicial system could restore, or permanently alter, the Title X program. There are three cases to watch: one in the Ninth Circuit, one in the Fourth and one in the First. Ultimately, this issue could end up before the Supreme Court, but these cases aren’t over yet.

Plaintiffs in the Ninth Circuit include the American Medical Association, Essential Access Health, the National Family Planning and Reproductive Health Association, Planned Parenthood and 23 states. After the District Courts granted preliminary injunctions blocking the rule, the administration appealed. A panel on the 9th Circuit court then allowed the rule to take effect while litigation continues. The court last heard oral arguments on September 23.

In the Fourth, the plaintiff is the City of Baltimore. After the District Court granted a preliminary injunction blocking the rule with respect to the State of Maryland, the administration appealed. On July 2, a three-judge panel ruled it could take effect in Maryland as litigation continues.

Maine Family Planning is the plaintiff in the First, where they are currently appealing a District Court decision refusing to grant a preliminary injunction on July 3.

All three lawsuits claim the administration’s new rule imposed on federally funded clinics violates a provision of Congress’s annual funding bill which declares that “all pregnancy counseling shall be nondirective.” The plaintiffs argue that the rule’s provisions restricting information about some pregnancy options while permitting information on others violates this requirement, because the rule purposefully “directs” or steers patients away from any referral for abortion.

Congress also included a provision in the Affordable Care Act (ACA) barring the U.S. Department of Health and Human Services from issuing any regulation that “interferes with communications regarding a full range of treatment options between the patient and the provider” or “restricts the ability of healthcare providers to offer full disclosure of all relevant information to patients making healthcare decisions,” which the restrictive provisions of the new Title X rule go against.

The administration does not believe the intervening laws passed by Congress, and cited by the plaintiffs, should affect the outcome. Instead, their main argument in support of the domestic gag rule cites a U.S. Supreme Court decision from 1991 that upheld a similar regulation governing Title X issued by Reagan.

This year, nearly half of women between 18 and 34 reported having experienced an issue accessing birth control. Feeling uncomfortable discussing it was the main barrier. This current environment is threatening the well-being of women across the country. The last thing we need is to restrict conversations with the people they should trust most: their healthcare providers. 

Politics have no place in the exam room. It is essential that we rely on fact-based, scientific approaches to health care, and this move by the administration circumvents facts and sound judgment entirely.


Jessica Grossman, MD, is the chief executive officer of Medicines360,  a nonprofit global women’s health pharmaceutical company with a mission to expand access to quality medicines for all women regardless of their socioeconomic status, insurance coverage or geographic location.