Judge: Trump Must Restore Federal Health Websites

Medscape

3 days ago

The Trump administration has begun restoring health-related websites and datasets that it removed in January in order to comply with an order from a federal judge, who said that agencies such as the CDC unlawfully deleted treatment guidelines and other critical data that impaired doctors' ability to care for patients.
Federal agencies report that they now have restored 67 of the 212 webpages that plaintiffs included in their list, according to a court document filed on July 18. Those sites include pages about adolescent and school health, endometriosis, and health disparities among LGBTQ youth.
The administration's initial purge of online health information prompted a lawsuit from the medical advocacy group Doctors for America and the city and county of San Francisco, which sought to force the government to restore the information.
'With this ruling, we can provide care for our patients and protect public health based on evidence, rather than ideology,' said Reshma Ramachandran, MD, MPP, MHS, a Doctors for America board member, in a statement.
The legal battle began when President Trump issued an anti-transgender executive order on his first day in office. The order denies transgender people government recognition, stating, 'It is the policy of the US to recognize two sexes, male and female.'
The Office of Personnel Management (OPM), the federal government's human resources agency, told federal agencies to comply with Trump's order. In a memo issued on January 29, the OPM gave agency heads until January 31 to 'take down all outward-facing media' that recognize or reference transgender identities.
As part of a temporary restraining order issued in February, Judge John D. Bates of the US District Court for the District of Columbia ordered the federal agencies to restore missing websites on which the plaintiffs relied. Although the agencies said they followed the judge's order, plaintiffs reported that some webpages are still missing.
Information Remains Missing
Months later, some of the deleted webpages are still blank.
A CDC webpage with information about HIV and transgender patients says 'the page you're looking for was not found,' for example. An FDA webpage about health equity in artificial intelligence contains no data. And an FDA webpage with guidance for increasing the number of minorities in clinical trials was found. 'In an order on July 2, Bates vacated the federal health agencies' directives calling for the removal of public information.
In an accompanying legal opinion, Bates found that federal agencies did not follow federal law when they stripped medical information from government websites in January.
He ordered the plaintiffs to compile a list of websites and datasets that they needed to treat patients by July 11 and for the federal agencies to file an update on their progress restoring the sites.
In their legal response, the federal agencies said they will finish restoring the webpages that fall under the judge's order 'as soon as practically possible,' but that the pace of the restoration 'is limited by staffing and other resource constraints, as well as by agency safeguards that require multiple layers of approval in order to modify a website.'
But the federal agencies also said they haven't been able to restore some webpages because the plaintiffs haven't given them a specific web link, according to court documents. In other cases, the agencies argue in court filings that certain missing websites are exempt from the judge's order because they were deleted for reasons other than now-vacated orders.
In his opinion, Bates wrote that while presidents have the right to issue executive orders, the removal of 'hundreds or even thousands' of webpages and datasets upon which doctors, researchers, and policymakers rely failed to follow a federal law that regulates how agencies act.
'The decision serves as a reminder that the government must follow the law, just like the rest of us,' said Zach Shelley, a Public Citizen Litigation Group attorney and lead counsel for the plaintiffs, in a statement.
But in a court document filed in March, the federal agencies defended the purge by saying the health websites and datasets were 'inconsistent with administration policy' both in terms of sex and gender, as well as Trump's executive order barring activities that promote diversity, equity, and inclusion.
In the document, the agencies wrote, 'Forcing [US Department of Health and Human Services] HHS to host websites with information contrary to current policy would severely impinge the government's authority to choose what to say and not to say.'
'Arbitrary and Capricious'
In their lawsuit, several physicians in Doctors for America described how the loss of professional medical guidelines on the CDC website harmed patient care. For example, Stephanie Liou, MD, FAAP, a member of the group's board, said the sudden loss of online resources for treating sexually transmitted infections stymied her efforts to combat an outbreak of chlamydia at 'one of the most underserved high schools in Chicago,' according to court documents.
Ramachandran described how the abrupt disappearance of CDC resources delayed her care of a patient with a complex medical history. Without access to the CDC's professional guidelines, Ramachandran had to search elsewhere for specific instructions on prescribing medication to prevent HIV for this patient, according to court documents.
In an article in The New England Journal of Medicine , a physician and two legal scholars noted that 13% of CDC datasets disappeared between January 21 and February 11, which left researchers and policymakers unable to assess key measures of American health, identify outbreaks of infectious disease, or spot trends in overdoses. The removals also impaired the ability of state and local agencies to monitor public health.
'Without access to accurate and timely, scientists' work will become more difficult, and we will understand less about the world,' the authors wrote.
Bates questioned why government officials acted with such haste in January. Trump's executive order set a timetable of 120 days — not 48 hours — to rid federal websites of references to what the president calls 'gender ideology.'
OPM's rushed directives were 'arbitrary and capricious,' Bates wrote in his opinion. 'This case involves government officials acting first and thinking later.'
Federal officials didn't need to order the 'bulk removal of health care resources' to comply with the executive order, Bates wrote in the opinion.
The judge noted in court documents that some agency officials took a measured approach by simply replacing terms to which Trump objects, such as 'gender' and 'pregnant people,' with alternatives such as 'sex' and 'pregnant women.' Other agency officials, Bates wrote in his opinion, took a 'slapdash approach' by 'fully removing any webpage with offending language, no matter how minimal, without any stated intent to modify and republish the webpage.'
'The government is free to say what it wants, including about 'gender ideology,'' Bates wrote in his opinion. 'But in taking action, it must abide by the bounds of authority and the procedures that Congress has prescribed.'
Not the Last Word
Bates noted in his opinion that federal agencies can head 'back to the drawing board' to 'craft a lawful policy with similar objectives.'
And Janet Freilich, a professor at the Boston University School of Law, Boston, described the court decision as 'a partial win' for doctors and public health staff, noting that federal agencies are likely to appeal the decision.
Bates' ruling 'does not entirely prevent these datasets and webpages from being taken down in the future,' Freilich said. 'The government could find a lawful way to modify and take down datasets.'
Freilich also noted that the ruling won't necessarily resurrect all the data that have disappeared this year. That's because federal agencies are only obligated to restore the specific webpages on the plaintiffs' list.
Yet Bates left the door open to recover additional webpages, Shelley said. For example, other doctors or public health leaders could potentially sue to force the Trump administration to restore webpages that are particularly important to them.
'The reasoning is that all of these removals are unlawful,' Shelley said in an interview. 'This administration has been incredibly careless. It's been, at times, just outright malicious. Carelessness and maliciousness don't hold up well in court.'
Although many of the health webpages are back online, they now display a prominent yellow warning label noting that the health agencies were legally required to restore the pages and that their content may not be reliable. In his ruling, Bates wrote that federal agencies do not need to remove the disclaimers, which read, 'Any information on this page promoting gender ideology is extremely inaccurate and disconnected from the immutable biological reality that there are two sexes, male and female….This page does not reflect biological reality, and therefore the administration and this department reject it.'
Critics of the Trump administration have filed more than 300 lawsuits to block his policies, according to Lawfare, a nonprofit multimedia publication.
Two Harvard Medical School researchers sued the Trump administration in March after their research was removed from an online patient safety resource on the website of the Agency for Healthcare Research and Quality, part of HHS, because of the agency's attempt to comply with the anti-transgender executive order. One of the deleted articles, which focused on endometriosis, noted that physicians should be aware that the painful condition can occur in transgender and nonbinary patients. Another article noted that people who identify as LGBTQ have a higher risk for suicide.
In May, federal judge Leo Sorokin ordered the administration to restore the articles while the case is litigated. In his order, Sorokin wrote that 'the plaintiffs are likely to succeed in proving that the removal of their articles was a textbook example of viewpoint discrimination by the defendants in violation of the First Amendment.'
Although judges in lower courts have put many of Trump's policies on hold, the Supreme Court has reversed several of these decisions. The sudden disappearance of masses of public data has undermined faith in government health agencies, said Dorit Rubinstein Reiss, PhD, LLB, law professor at the University of California, San Francisco.
'If government needs a court decision to provide good science, we cannot trust that it will provide it in cases when people don't sue,' Reiss said.