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HHS Rule Bars Clinics That Perform Abortion, Make Referrals From Receiving Title X Funds

Mary Caffrey
The rule takes effect in 60 days, but the provision requiring physical separation of facilities that perform abortion takes effect in a year.
Clinics that perform abortion or make referrals to providers that do will be barred from receiving any of $286 million in federal family planning funds, which appear poised to be redirected to faith-based groups under a rule HHS finalized today. The program serves 4 million low-income people, mostly women.

The Trump administration’s announcement, which followed a rule proposed June 1, 2018, is expected to be challenged in court by states and affected groups. The change to the program called Title X, created by President Richard Nixon in 1970, means that Planned Parenthood will lose $60 million and would bar patients from receiving information or a referral for abortion services even if one is directly requested.

A statement from HHS read, “The final rule ensures compliance with statutory program integrity provisions governing the program and, in particular, the statutory prohibition on funding programs where abortion is a method of family planning. The final rule amends the Title X regulation, which had not been substantially updated in nearly two decades, and makes notable improvements designed to increase the number of patients served and improve the quality of their care.” It stated that the  department had reviewed more than 500,000 comments.

A fact sheet said the final rule will require the following:
  • Bars the use of Title X funds to perform, promote, refer for, or support abortion as a method of family planning.
  • Permits, but no longer requires, “nondirective” pregnancy counseling. Thus, a family planning provider funded by Title X can list a group of providers but cannot single out which ones offer abortion.
  • Ensures the physical and financial separation of services provided with federal funds and any group that provides abortions or referrals. Financial separation requirements take effect 120 days after publication in the Federal Register; physical separation requirements take effect at 1 year.
  • Citing that 1 in 5 Title X recipients “are adolescents,” the fact sheet states that the rule requires documentation that providers have tried to “meaningfully encourage” parent/child communication in family planning decisions.
  • Requires that minors be counseled on how to resist coercion to engage in sexual activity.
Critics of the changes, including several Democratic members of Congress, have called the policy a “gag rule,” while supporters of the new HHS policy refer to it as the “protect life rule,” according to a statement from the Family Research Council. House Chairmen Frank Pallone, D-New Jersey, who leads the Energy and Commerce Committee, and Elijah Cummings, D-Maryland, who leads the Oversight Committee, were among the first to condemn the rule, which takes effect in 60 days.

“As we have seen time and again, the Trump Administration is willing to break the law to pursue policies driven by ideology rather than what is best for women and their families,” Pallone said a statement.

Said Cummings, “The Administration is ignoring the significant health and economic impacts its actions will have on millions of Americans who rely on the Title X program.”

New York Attorney General Letitia James tweeted, “We will take legal action,” and Washington State Governor Jay Inslee said in a statement that the administration “has given our state no choice but to explore all possible avenues, including legal options, to ensure all women have access to the family planning and healthcare services they need.”

The statement had no direct quote from HHS Secretary Alex Azar or any other department official. It states that a person may be considered for Title X services if barred from obtaining contraceptive coverage through an employer-sponsored health plan; HHS has also sought to expand employer rights to bar such coverage, through a separate rule now being challenged in court.

Planned Parenthood, a leading recipient of Title X funds, has long maintained that no federal funds are used for abortion and that the taxpayer dollars it receives are used to provide contraception services, screenings, and other services. But language in the rule reflects sentiments of Planned Parenthood critics, who insist that the group’s ability to house abortion services under the same roof amounts to a taxpayer subsidy of abortion, which is a violation of the law’s intent.

Of note, an October notice from HHS called for groups to apply for Title X funding to offer family planning methods that included natural family planning and abstinence.

Numerous medical associations have opposed the changes, including the American Medical Association and the American College of Obstetricians and Gynecologists. AMA President Barbara McAneny, MD, said in a statement that the rule interferes the with doctor-patient relationship and barring physicians from informing patients of all medical options and rights violates the Code of Medical Ethics.

“For all intents and purposes, it imposes a gag rule on what information physicians can provide to their patients,” McAneny said. “The patient-physician relationship relies on trust, open conversation and informed decision making and the government should not be telling physicians what they can and cannot say to their patients.”

By contrast, the HHS rule argues that acknowledging patients’ religious beliefs promotes, rather than stifles, communication, and cites an example of honoring the religious beliefs of migrant women, amid the current dispute with Democrats in Congress over immigration policy.

The rule states, “Because positions of conscience are often grounded in religious influence, ‘[d]enying the aspect of spirituality and religion for some patients can act as a barrier. These influences can greatly affect the well-being of people. These influences were reported to be an essential element in the lives of certain migrant women which enabled them to face life with a sense of equality.’ It is important for patients seeking care to feel assured that their faith, and the principles of conscience grounded in their faith, would be honored, especially in the area of family planning. This would ensure that patients with such religious beliefs or moral convictions feel they are being treated fairly and that their religious beliefs or moral convictions are respected.”

McAneny, an oncologist who practices in New Mexico, said in the statement that the new rule would create hardship for low-income women who rely on current providers for services. “Millions of women depend on the Title X program for access to much-needed healthcare including cancer screenings, birth control, STI testing and treatment, and other exams. This is the wrong prescription and threatens to compound a health equity deficit in this nation. Women should have access to these medical services regardless of where they live, how much money they make, their background, or whether they have health insurance.

“Title X is popular, successful, and has had bipartisan support for decades. Our country is at a 30-year low for unintended pregnancy and an historic low for pregnancy among teenagers — largely because of expanded access to birth control. We should not be walking back from that progress.”

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