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May 29, 2018
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Twenty-seven years ago almost to the day, a deeply split United States Supreme Court, in Rust v Sullivan, (500 US 173, decided May 23, 1991) endorsed the legality of Reagan-era regulations known as the “gag rule.” Under the guise of “program integrity,” the regulation aimed to place insurmountable barriers between the Title X family planning program and women’s access to abortion services. Today, the Trump administration has brought back the gag rule in virtually identical form, made public on May 22, with an expected 60-day comment period to follow formal publication.1
The Reagan gag rule did 3 things. First, it barred grantees from either counseling about abortion or making abortion referrals as a method of family planning. Second, it prohibited Title X grantees from engaging in activities that “encourage, promote, or advocate abortion” as a family planning method. Third, it required physical and financial separation within facilities offering a continuum of care, including both family planning and abortion.
In the narrow 5-4 ruling—handed down 15 years after abortion was declared legal under Roe v Wade (410 US 113 )—the Rust majority, deferring to the agency, concluded that the regulations were a permissible interpretation of section 1008 of Title X, which provides that “[n]one of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.” The majority further held that the rules did not violate physicians’ First Amendment rights because the government is free to use its own funds to promote certain purposes, in this case, purely preventive family planning services and referrals only for birth-related care. The majority further concluded that the rule did not violate women’s Fifth Amendment right to choose abortion since the government “has no constitutional duty to subsidize an activity merely because the activity is constitutionally protected and may validly choose to fund childbirth over abortion and implement that judgment by the allocation of public funds.”
Following Rust, the gag rule was never implemented. In 1993, the Clinton administration suspended the rule and returned Title X policy to its prior state by eliminating the physical/financial separation requirement, the counseling and referral ban, and the ban on abortion-related activity. Regulations issued at the end of the Obama administration—and subsequently nullified in 2017 by Congress under the Congressional Review Act—would have barred states from refusing to allocate Title X funds to certain providers solely on the ground that they also furnish care not paid for by Title X, specifically, abortion.
Today, nondirective counseling regarding both family planning and pregnancy options is the Title X norm. A range of providers participate in the program. Among the roughly 90 public health agencies and nonprofit organizations that receive Title X funding and deliver care in more than 4,000 sites are clinics offering preventive health services only, such as family planning, testing, and referrals for sexually transmitted infections, screening mammograms, and other preventive care. Also participating are comprehensive primary care clinics, such as federally funded community health centers, of which nearly 25% receive Title X grants to enhance their family planning activities,2 and Planned Parenthood clinics offering a full range of preventive health and reproductive services, including abortion.
In keeping with section 1008, current Title X policies bar use of Title X funds for abortion-related care. This is a sensible approach that respects the rights of women while ensuring compliance with the funding terms of a program signed into law 3 years before Roe v Wade was decided. Furthermore, given the nullification of the 2016 nondiscrimination rules, states that receive Title X funding have the power to shape their Title X provider systems.
Now we are back where we were in 1991, facing a regulatory onslaught that seeks to use Title X as a battering ram against women’s right to choose generally and Planned Parenthood specifically, along with any other providers offering a continuum of safe reproductive health services. Despite major advances in effective family planning methods such as long-acting contraceptives and a dramatic decline in abortions,3 we are living through a time when reducing the public health risks associated with unintended pregnancies has taken a back seat to extreme political agendas and fulfillment of campaign promises in an election year. Indeed, the rule was unveiled by the president himself during a May 22 speech titled “President Donald J. Trump is Defending American Values.”4
The proposed rule demands a close read. Following a lengthy preamble explaining why the government has done a policy about-face (politics alone don’t justify regulations), the administration has climbed back on the program integrity hobby horse, declaring that its change of heart reflects its duty to “consider the effectiveness” of its approach to enforcing section 1008. Upon reflection, the administration states, the old rule—now the new rule—represents “the best interpretation” of Title X. This preamble is a warm-up act for the litigation that inevitably will come, brimming with assertions regarding the power of administrative agencies to do a policy reset. But it lacks any meaningful explanation regarding the so-called program integrity problems that might have triggered this back-to-the-future exercise and makes no representations regarding how the rules will advance the health of people who depend on Title X-funded clinics.
While the new rule is a reprise, there are twists. It retains the “wall of separation” designed to exclude participation by providers that offer a continuum of reproductive care, as well as a ban on referrals and advocacy. While much has been made of the fact that counseling is allowed, the actual proposed counseling standard must be read to be believed:
If asked, a medical doctor may provide a list of licensed, qualified, comprehensive health service providers (some but not all of which also provide abortion, in addition to comprehensive prenatal care), but only if a woman who is currently pregnant clearly states that she has already decided to have an abortion. This list is only to be provided to a woman who, of her own accord, makes such a request. The list shall not identify the providers who perform abortion as such [Proposed 45 CFR § 59.14].
In other words, physicians may “counsel” but only when asked for specific information by specific women. They can offer no considered, affirmative medical advice. Furthermore, their “counseling” is limited to handing out highly restricted lists that exclude clinics specializing in abortion. The testers, who naturally will abound should these rules become final, will have a field day looking for clinics engaged in “illegal” counseling by using trained counselors, giving information to the “wrong” women, and handing out lists of “forbidden” providers that actually specialize in abortion.
Who will be injured by these rules? Not affluent women with access to private physicians allowed to practice unencumbered by the federal government’s unbelievable intrusion into medical care. The victims are millions of low-income women, their families, and residents of medically underserved urban and rural communities that disproportionately rely on the government to help create access to the most effective health care. They will now obtain their care in censored settings. Only in a world in which policymaking rests on views antithetical to public health and respect for individual rights could this proposed rule be an example of “Defending American Values.”
Sara Rosenbaum is the Harold and Jane Hirsh Professor of Health Law and Policy and founding chair of the Department of Health Policy at the George Washington University School of Public Health and Health Services. She also holds professorships in the Schools of Law and Medicine and Health Sciences. A graduate of Wesleyan University and Boston University Law School, Rosenbaum has devoted her career to issues of health justice for populations who are medically underserved as a result of race, poverty, disability, or cultural exclusion. Between 1993 and 1994, Rosenbaum worked for President Clinton, where she directed the drafting of the Health Security Act and designed the Vaccines for Children program, which today provides near-universal immunization coverage to low-income and medically underserved children. Rosenbaum is the leading author of Law and the American Health Care System (Foundation Press, 2012) and has received many national awards for her work in public health policy. She is past chair of AcademyHealth and a member of the Institute of Medicine. Rosenbaum also has served on the CDC Director’s Advisory Committee and as a Commissioner on the Congressional Medicaid and CHIP Payment and Access Commission (MACPAC), which she chaired from January 2016 through the expiration of her term in April, 2017.
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