Maggie Bynum (SC ‘20)
On March 3rd, 2019 the Department of Health and Human Services (HHS) submitted a final rule to the National Register that will have a detrimental effect on reproductive health services in the United States. The rule outlines several changes to Title X, also known as the Family Planning Program. Since its establishment in 1970, Title X has been the only source of federal funding dedicated to providing people with affordable or no-cost reproductive healthcare services and education.
Federal funding for reproductive healthcare was not always a polarizing issue. In a 1969 letter to Congress President Nixon wrote, “It is my view that no American woman should be denied access to family planning assistance because of her economic condition. I believe, therefore, that we should establish as a national goal the provision of adequate family planning services within the next five years to all those who want them but cannot afford them.”
A History of Title X
Only one year after President Nixon’s letter, Congress passed the Family Planning and Population Research Act of 1970 with bipartisan support. The Act established the Family Planning Program as Title X of the Public Health Services Act of 1944.
The Family Planning and Population Research Act Act allowed the Secretary of Health, Education, and Welfare to provide grant funding to both public and nonprofit organizations for education, training, research, and patient care. Just 10 years after the first contraceptive pill was approved by the FDA, women, regardless of race, marital status, income, or health insurance status, had access to birth control and education about birth control. In 1978, Title X coverage extended to minors, and women of all ages had access to reproductive care.
Three years after the Family Planning and Population Research Act became law, the Supreme Court of the United States determined that excessive abortion restrictions were unconstitutional in an historic case known as Roe v. Wade. Regardless of the Supreme Court’s decision, abortion has always been excluded from Title X coverage by law.
Opposition to Title X
Although originally passed with bipartisan support, Title X has since faced opposition. When Title X funding was extended to minors in 1978, some people claimed it would encourage underage people to have sex, while others opposed subsiziding birth control for unmarried women. The next wave of opposition came in 2011 when the Republican party took control of the US House of Representatives.
In 2011, the U.S. House of Representatives passed H.R. 358, the “Protect Life Act”, introduced by Representative Joseph Pitts (R-PA-16), and H.R. 3, the “No Taxpayer Funding for Abortion Act”, introduced by Representative Christopher Smith (R-NJ-4). If they had become law, both H.R. 358 and H.R. 3 would have prevented any federal dollars from going to abortion services or towards any healthcare plan that covered abortion. Currently, abortions may only be covered by federal funding if the patient’s life is at risk or if the pregnancy resulted from rape or incest, due to the Hyde Amendment which was first enacted in 1976 and has been re-authorized as part of the HHS appropriations bill every year. Both H.R. 358 and H.R. 3 failed in the Senate. Also in 2011, then-Representative Mike Pence (R-IN-6) introduced H.R. 217, the “Title X Abortion Provider Prohibition Act”. H.R. 217 would have blocked funding for any organization that provided abortion services or provided funds to another organization that performed abortion, regardless of other services that organization provided. H.R. 217 did not make it to the House floor for a vote. Although neither H.R. 358, H.R. 3, nor H.R. 217 became law, this legislation exhibit a serious political shift around Title X. Representative Pence would get another opportunity to restrict access to reproductive healthcare upon becoming Vice President in January of 2017.
Title X Under the Trump-Pence Administration
The most important regulatory changes in the Administration’s final March 3rd rule include: requirements for patient care, separation between abortion and non-abortion infrastructure, and services for pregnant clients.
Changes to Requirements in Patient Care
Under the new rule, HHS no longer requires the services provided to patients be “medically approved”. Furthermore, the new rule allows recipients of Title X funding to restrict the services and family planning methods they offer “for reasons of conscience”.
Patients must be able to trust that they are receiving accurate information and that they have access to different contraceptive methods, so that they can make the best decision for their health and family planning goals. Reliable and low-cost access to reproductive health care is necessary for preventing abortions and unintentional pregnancies. According to the Guttmacher Institute, “contraceptive services provided at Title X sites [in 2015] helped women avoid 822,300 unintended pregnancies. Of these, 387,200 of would have resulted in unplanned births and 277,800 would have resulted in abortions”. Federally-funded comprehensive reproductive health care would benefit everyone because “every $1 invested in publicly funded family planning services saves taxpayers more than $7”.
Changes to the Separation Between Abortion and Non-Abortion Infrastructure
Prior to the rule change, a health clinic that received Title X funding and provided abortions could use the same facilities, waiting rooms, staff, records systems, etc. “so long as it [was] possible to distinguish between the Title X supported activities and non-Title X abortion- related activities”. The new HHS rule requires that Title X services be entirely “physically and financially separate” from non-Title X services, even when administered by the same organization. This means that a health clinic receiving Title X grants that also provides abortions will have to build a new facility and hire new staff in order to continue proving care to patients.
Changes to Services for Pregnant Clients and the ‘Gag Rule’
The most detrimental aspect of the rule change affects what information Title X grantees are required and able to provide pregnant patients. Prior to the rule change, Title X clinics were required to provide patients with information about all of their different options, including abortion. Clinics were also required to provide referrals for services their patients requested, including abortion.
The new rule removes this requirement and instead mandates that prenatal care is medically necessary for all pregnant people and that Title X providers refer all pregnant patients to a health care provider for prenatal care. The health care providers to whom Title X clinics are required to refer patients for prenatal care may also provide abortions, but the Title X clinic is prohibited from telling patients which ones they are. A Title X clinic may provide nondirective counseling on abortion to a patient, but they may only refer a patient to an abortion provider in the event of an emergency, rape, or incest. In effect, reproductive healthcare providers receiving Title X funding are prohibited from providing their clients with comprehensive information about their reproductive health.
We are already witnessing the harmful effects of this rule change. Six states and nonprofit providers that cover all of Utah and Maine have already withdrawn from the program. Planned Parenthood, a major nonprofit Title X provider, serves nearly 40% of Title X patients, but announced on August 19th that they will no longer be participating in the program because of the gag rule. The hit to states’ and nonprofits’ budgets means they will need to reallocate funds from other programs or discontinue offering services at little to no cost.
Title X Today
The HHS rule went into effect May 3, 2019, and is currently facing contentious litigation. Most recently, on September 23, 2019, the 9th Circuit Court of Appeals heard arguments concerning if the rule should be in effect during an active lawsuit brought forth by 22 states and nonprofit Title X grantees against the federal government.
Title X is an essential public program that provided family planning services like contraception to 4 million people in 2017. As a result of the gag rule, organizations like Planned Parenthood must either compromise they care they are able to offer patients or forgo federal funding in order to continue providing necessary comprehensive reproductive healthcare services. Either way, patients will suffer.