Trump’s Fatal Flaw in Effort to Overhaul Health Care: Cutting Corners

WASHINGTON — The Trump administration is on a losing streak in court cases challenging its efforts to abruptly change health care policy, but the naming of a new Supreme Court justice could alter the trajectory on some of the most controversial cases, from funding Planned Parenthood to mandating contraceptive coverage.

The cases the administration has lost have had a common theme: Federal judges have found the administration cut corners in trying to advance its political priorities.

Most recently, a federal district judge said the administration had acted unlawfully in approving work requirements for the state Medicaid program in Kentucky.

Before that, two federal courts blocked Trump administration rules that would have allowed employers who provide health insurance to employees to omit contraceptive coverage if the employers had moral or religious objections. Two federal judges, in separate cases, said the administration had violated the law by adopting the rules without a public comment period, which the Trump administration had declared “impracticable and contrary to the public interest.”

The recent court rebukes have only increased the focus on the Supreme Court and the impact that Justice Anthony Kennedy’s retirement could have. Beyond abortion rights, which are sure to be a focus of Senate confirmation hearings, other health care issues could be in the balance.

The court upheld the Affordable Care Act in 2012, but challenges to various provisions are still pending in lower courts. In addition, the Supreme Court is being asked to decide questions with major implications for the future of Medicaid: whether states can exclude Planned Parenthood clinics from their Medicaid programs, and whether Medicaid patients can sue states to enforce their rights under federal law.

“Any presidential administration is going to try and push as hard as it can to use its executive powers to the limit,” said Sara Rosenbaum, a professor of health law and policy at George Washington University. “But this administration is reframing the purpose of health care laws to pursue its own preferred agenda. That’s what the courts have found.”

The administration’s troubles in courts are somewhat surprising since Alex M. Azar II, the secretary of health and human services, emphasized the importance of following proper procedures when he served in the George W. Bush administration as general counsel at the department.

“Clients always want to do things quickly, especially when you are dealing with the public health and welfare,” Azar said in a 2004 speech. “But we try to convince our clients that it will serve their interests by doing things the right way. Often, this means using notice-and-comment rule-making, which can be a long and arduous process.”

Short-circuiting that process, he said, gives opponents an “easy way to stop you in your tracks and embarrass you.”

That is exactly what has been happening. On the Medicaid work requirement, Judge James E. Boasberg of the U.S. District Court in Washington said the administration had “paid no attention” to the fact that 95,000 low-income people would lose medical coverage under Kentucky’s work plan, according to the state’s own estimate.

Seema Verma, the top federal Medicaid official, has generally championed work requirements as a way to promote greater independence for Medicaid beneficiaries and to reduce their reliance on public assistance. While those may be “worthy goals,” the judge said, the administration ignored the overarching statutory purpose of the Medicaid program, which he said was to provide medical assistance to people who needed it.

Shortcuts around the federal rule-making process also tripped up the administration’s efforts to allow employers to withhold contraception coverage. Judge Haywood S. Gilliam Jr. of the U.S. District Court in Oakland, California, ruled the public was entitled to weigh in on the proposed changes. For a substantial number of women, he said, the new rules would “transform contraceptive coverage from a legal entitlement to an essentially gratuitous benefit wholly subject to their employer’s discretion.”

Women, he said, “face potentially dire public health and fiscal consequences as a result of a process as to which they had no input.”

Judge Wendy Beetlestone of the U.S. District Court in Philadelphia reached a similar conclusion. She issued a preliminary injunction to block the birth control rules after finding that tens of thousands of women could lose contraceptive coverage and “suffer serious and irreparable harm.”

The Affordable Care Act requires health plans to cover “preventive services,” and the Obama administration defined that term to include contraceptives for women. The law does not allow “sweeping exemptions,” Beetlestone said.

The White House has encountered even more legal problems trying to terminate grants awarded to nonprofit organizations to help prevent teenage pregnancy. The administration told Judge John C. Coughenour of the U.S. District Court in Seattle that it had discretion to terminate the grants “for whatever reason” it wanted and said he could not review the decision. The judge disagreed and ordered Azar to reinstate them. Trump administration officials “have attempted to convince multiple courts of their position with no success,” Coughenour wrote.

In the U.S. District Court in Washington, Judge Ketanji Brown Jackson said the termination of grants to pregnancy prevention programs in Texas and North and South Carolina, “without any explanation whatsoever,” was arbitrary and capricious, flouted the agency’s own regulations and violated the Administrative Procedure Act.

And a federal district judge in Baltimore, Catherine C. Blake, ruled the Trump administration had improperly cut off funds to the city and a nonprofit group, the Healthy Teen Network. In ending the grant, she said, federal officials showed no sign they had even considered the purpose for which Congress created the program: to prevent teenage pregnancy.

Court documents indicate the decision to end the grants was made by political appointees who wanted to use the money for programs promoting abstinence from sexual activity outside marriage.

Such rulings do not mean that the Trump administration’s efforts have reached a dead end. On the hot-button topic of Planned Parenthood, the lower courts are divided.

Four federal appeals courts have ruled that states cannot declare Planned Parenthood ineligible for Medicaid funding. But the 8th U.S. Circuit Court of Appeals went the other way, ruling Medicaid patients in Arkansas did not have a right to receive services from Planned Parenthood.

The Medicaid law generally allows beneficiaries to obtain services from any qualified provider, but the 8th Circuit said the law “does not unambiguously create a federal right for individual patients that can be enforced” in court.

President Barack Obama had legal difficulties as well. The Supreme Court eventually upheld provisions of the Affordable Care Act that required most Americans to have health insurance and authorized tax credits to help people buy it in the federal marketplace. But Obama’s efforts to guarantee access to free birth control for women were challenged in more than 50 court cases.