Photo credit: Erin Rubin

May 24, 2018; New York Times and Washington Post

The Trump administration released on last Friday proposed language that will restrict federal funding for any Title X–funded clinic that performs abortions. Title X grants, under the US Department of Health and Human Services, have provided funding to community health centers and family planning clinics for over 40 years, providing preventive health services to millions, including low-income and uninsured individuals. This language “proposes to revise…Title X regulations to ensure compliance with, and enhancement implementation of, the statutory requirement that none of the funds appropriated for Title X funding may be used in programs where abortion is a method of family planning.”

Current policy enforced by the Hyde Amendment bans federal funding of abortions. This new policy from the Department of Health and Human Services (HHS) would force abortion service providers to operate out of separate facilities, with separate personnel from other family planning activities funded by Title X. Abortion clinics will be required to operate independently from clinics that provide birth control, pregnancy testing, and other family planning services.

The administration states in their proposal that the prohibition of funding for abortion should include “any action that directly or indirectly facilitates, encourages, or supports in any way the use of abortion.” This would prohibit the use of Title X funds to “perform, promote, refer for, or support abortion as a method of family planning,” but doctors would be able to provide “nondirective” counseling on abortion to a woman who “clearly states that she has already decided to have an abortion.”

The policy has often been referred to as a “domestic gag rule,” forbidding providers from talking to patients about abortion and limiting access to abortion. However, a statement released from the White House denies that. HHS has drawn a line between counseling and referrals—essentially, counseling is allowed as long as it is not directive, and the patient has already decided to receive an abortion. This is unlike other healthcare counseling and decisions, where healthcare providers generally share information about available options. Because HHS is proposing to allow providers to share a “list of licensed, qualified, comprehensive health services providers (some, but not all, of which also provide abortion in addition to comprehensive prenatal care),” this is ostensibly not a gag rule.

Antiabortion organization The Susan B. Anthony List has applauded President Trump on this policy, calling this a victory for pro-life voters that frees taxpayers from the burden of “the abortion business.” An official in the Trump administration echoed this sentiment, saying that this policy would give Planned Parenthood and other abortion providers that receive federal family planning funding a choice: “disentangle themselves from abortion or lose government funding.” The Trump administration is actively holding family planning money hostage in exchange for severely restricting the healthcare rights of Americans.

Despite the insistence of HHS and the White House that this is not a gag rule, Planned Parenthood disagrees. In a press release dated May 18th, Planned Parenthood stated:

It removes the guarantee that you’re getting full and accurate information about your health care from your doctor. For nearly two decades, Title X law has been clear: Health care providers cannot withhold information from you about your pregnancy options. This rule means they can.

The Trump Administration and conservatives have long targeted Planned Parenthood; Planned Parenthood clinics serve 41 percent of women who receive services under Title X.

The American College of Obstetricians and Gynecologists (ACOG), the American College of Physicians, the American Academy of Pediatrics, and numerous other organizations have stated direct opposition to this new rule. In a joint statement, this organizations stated:

Policy decisions about women’s health must be firmly rooted in science, and increase access to safe, effective and timely care. Together we strongly urge the administration to put patients first and withdraw this proposed rule without delay. Our organizations will submit comments to further highlight the dangerous negative impact on women’s health and the patient-provider relationship.

This policy change comes on the back of what are often referred to as TRAP laws—targeted regulation of abortion providers. In the summer of 2016, the Supreme Court, in the case of Whole Women’s Health v. Hellerstedt, rejected certain TRAP laws, which imposed an “undue burden” on women’s rights. These laws included unnecessary regulations and admitting privileges to hospitals by physicians who provided or worked for abortion providers.

Supporters of the proposed new rule point to US Supreme Court precedent from 1991, when a “slightly” broader 1988 restriction on Title X funding for abortion counseling was upheld in Rust vs. Sullivan. (The restrictions approved by the Court were never implemented.) However, according to the Washington Post, opponents believe the new rule would be sufficiently different from the rule upheld in Rust that a new legal challenge could succeed.

TRAP laws and restricting Title X funding does not just negatively impact the health of women and those in need of reproductive health care. It also disproportionately affects low-income and uninsured individuals, who use Title X clinics at higher rates. This regulation will reduce funding to family planning services such as birth control and sex education, which reduce the rates of unintended pregnancy and abortion. A report by the Guttmacher Institute in 2008 found that Title X funded clinics helped prevent nearly 1 million unintended pregnancies, which would have caused 400,000 abortions and 400,000 unintentional/unplanned births. This gag rule by the Trump administration has the potential to undo much of the positive preventive health services provided by Title X clinics across the country and limit the level of healthcare clinics are able to provide.—Ember Urbach