A federal judge on Tuesday ordered the nation’s premier health agencies to restore online access to several websites that monitor HIV, health risks for youths and assisted reproductive technologies, which were abruptly taken offline to ensure they complied with Trump’s recent executive order on gender.
U.S. District Judge John D. Bates granted a temporary restraining order requested by the nonprofit advocacy group Doctors for America, directing the administration to bring back public information maintained by the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA) while a lawsuit challenging the administration’s decision to remove it is pending.
“By removing long relied upon medical resources without explanation, it is likely that … each agency failed to ‘examine the relevant data and articulate a satisfactory explanation for its action,’” Bates wrote in an opinion issued Tuesday, finding that the health agencies probably violated federal law in taking down the scientific data. He ordered the agencies to restore access to the websites by the end of Tuesday.
The ruling is the latest in a string of losses in court for the new administration. Federal judges across the country have temporarily blocked Trump’s moves to freeze federal spending authorized by Congress, ban birthright citizenship, alter Treasury payment records and offer buyouts to thousands of federal workers, pausing a rapid-fire series of executive orders and agency moves.
About a dozen public health websites, some of which had been online since the 1990s, were pulled from the internet late last month after Trump signed an executive order directing federal agencies to recognize only male and female genders and the Office of Personnel Management issued a memorandum saying agency heads should “end all agency programs that use taxpayer money to promote or reflect gender ideology.” A Justice Department attorney representing the health agencies said they needed to review the sites’ content for compliance with the order.
Doctors for America, whose members practice medicine in all 50 states, said the removals went beyond the terms of Trump’s executive order and have left the public exposed to a broad swath of health risks. Zachary R. Shelley, an attorney for the group, described it in a court hearing Monday as “a major health care nightmare.”
“Every day that this goes on, there’s harm to the doctors, the patients and public health,” Shelley said.
Some information scrubbed from the CDC’s “Social Vulnerability Index,” for example, was key to identifying high-risk hot spots during the coronavirus pandemic, Doctors for America said in a court filing. Two FDA websites taken offline were being used to improve clinical studies by tracking efforts to diversify trial participants. Other online resources covered health risks for youths, HIV monitoring and the National Assisted Reproductive Technologies Surveillance System, a database used by fertility experts to track nationwide success rates from procedures such as in-vitro fertilization.
“The agencies’ actions create a dangerous gap in the scientific data available to monitor and respond to disease outbreaks, halt or hamper key health research, and deprive physicians of resources that impact clinical practice,” attorneys for the doctors’ group at the nonprofit Public Citizen said in court papers.
They argued that CDC and FDA officials violated the Administrative Procedure Act, a federal law that sets out specific steps for federal agencies that are implementing new policies, and the Paperwork Reduction Act, which requires officials to “ensure that the public has timely and equitable access to the agency’s public information.”
A Justice Department attorney said the doctors and medical professionals lacked legal standing to challenge the administration’s actions, because the CDC and FDA moves were not yet final agency actions under the meaning of the Administrative Procedure Act - and could be reversed by the time officials were done reviewing the materials.
James W. Harlow, a senior trial attorney in the department’s consumer protection branch, also noted that the information remains available on the Internet Archive’s Wayback Machine, a private service that stores snapshots of thousands of websites.
“The doctors just prefer not to search. But one’s ‘desire’ for information from a preferred government source and in a preferred format does not establish informational injury when the content is otherwise obtainable,” Harlow said in a legal filing, referring to two doctors who submitted court declarations saying the website removals were impeding their ability to treat patients.
One of them, Reshma Ramachandran, an assistant professor at the Yale School of Medicine, said the CDC removed a website with contraceptive guidance for health care providers. “I take care of female patients of reproductive age, many of whom have other medical conditions making it imperative to select the appropriate contraceptive that would not interfere with their existing comorbidities and other medications,” she said in a court filing. A longer CDC report on the same topic remains available, she said, but is more cumbersome to sift through when consulting patients.
The other doctor, Stephanie Liou, said she often screens patients for HIV and prescribes medication to prevent such infections. The CDC removed information on HIV and PrEP, a medication that reduces the risk of contracting the disease.
“We recently had an outbreak of Chlamydia at the high school where I work and are actively meeting with school leadership to address increasing our efforts around STI testing and prevention,” Liou said in a court declaration. “Without these crucial CDC resources, I am not able to do my job to help address this urgent situation that is affecting our youth.”
Bates wrote in a 21-page opinion that the health agencies’ actions would harm “everyday Americans, and most acutely, underprivileged Americans, seeking healthcare” from physicians such as Liou and Ramachandran.
“If those doctors cannot provide these individuals the care they need (and deserve) within the scheduled and often limited time frame, there is a chance that some individuals will not receive treatment, including for severe, life-threatening conditions,” the judge wrote.
Harlow’s arguments that the data could be obtained from other sources drew several sharp questions from the judge. Bates, who was nominated to the bench by Republican President George W. Bush in 2001, said the Trump administration should have kept the websites online while it reviewed their content, instead of removing them without notice or a public explanation. The Justice Department’s argument, he said, amounted to saying, “Whoops, we’re not going to have this be public information anymore, so off it goes,” even as doctors attested that patients could suffer adverse consequences.
“Just because an agency has chosen to do something doesn’t mean it has a statutory obligation, or a legal obligation, to keep doing so,” Harlow said.
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Lena H. Sun contributed to this report.