Trump Administration Seeks to Prevent Family Planning Funding Recipients from Providing Abortion Services or Referrals

May 17, 2018 (New York Times): How New Abortion Restrictions Would Affect Women's Health Care, by Julie Hirschfield Davis:

Currently, the federal government prohibits the use of federal funds for abortions. Now, the Trump administration is proposing a rule that would make health care organizations that provide or refer women for abortions ineligible from receiving federal funding for family planning services -- essentially seeking to punish organizations or pressure them to stop providing or referring women to abortion services.  

The proposed rule traces its origins back to the Reagan administration, but legislation prohibiting government funding to Planned Parenthood and other organizations that provide abortion services has become popular at the state level.  Last year, the Trump Administration made it easier for states to defund Planned Parenthood by signing legislation repealing an Obama administration rule that barred state and local governments from withholding federal funding from health care providers to pay for non-abortion health care services -- contraception, STDs, fertility, pregnancy care, and breast and cervical care -- if they also provided abortions. The Obama rule prohibited withholding federal funds from health care providers for any reason other than their ability to provide the funded services.  The new Trump rule would take the decision out of the hands of states and impose a nationwide prohibition on the receipt of Title X family planning funds by Planned Parenthood and other organizations that provide or refer women to abortion services.  (States have also tried to prohibit Planned Parenthood from receiving reimbursement for patient care through Medicaid, a much larger source of funding, but they have been largely unsuccessful because the Medicaid statute specifically provides that patients have a right to choose their provider.)

Title X was passed in 1970 to provide federal family planning assistance for low income women.  In 2014, an estimated 4,100 clinics used Title X funding to provide low-cost or free contraception, typically for individuals without health insurance coverage who do not qualify for Medicaid. Planned Parenthood currently serves 41% of women who receive subsidized or free family planning using Title X funds.  According to the New York Times, "In one-fifth fo the counties in which they are located, Planned Parenthood centers are the only federally funded option," and in two-thirds of the 491 counties in which Planned Parenthood operates, it serves at least half of all women receiving contraceptive care from federally subsidized facilities. 

The Reagan era rule on which the Trump rule is reportedly based required physical separation between Title X health care facilities and facilities that provide abortions and also prohibited the provision of any abortion related information or counseling.  Although the Supreme Court held that the rule was constitutional in the 1991 case Rust v. Sullivan, the rule was prevented from going into effect by court and legislative challenges.  In 1993, President Clinton suspended the rule and new regulations repealing the Reagan era rule were formalized in 2000.  Although the Supreme Court's 5-4 decision in Rust has not been reversed, the rule was unpopular (both the Senate and House voted to repeal the gag rule) and the case was decided before the Supreme Court's recent case in Whole Woman's Health v. Hellerstedt. Perhaps seeking to decrease the risk of a successful litigation challenge or legislative response, the Trump Administration's new rule drops the prohibition on discussing abortion. 

But Democrats and abortion rights advocates said the practical result of the proposal would be to silence medical caregivers the same way that an explicit gag rule would because they would no longer be allowed to refer women to providers that perform abortions.

“It is a distinction without a difference,” said Kashif Syed, a senior analyst at the Planned Parenthood Federation of America. “Blocking doctors from telling patients where they can get specific health services in this country is the very definition of a gag rule.”

The Trump administration released a summary of the proposal on Friday, but has not released the final language of the proposed rule.  Officials at Planned Parenthood said they would have to see the text of the proposed rule before deciding whether to take legal action. Governor Jay Inslee of Washington state and NY's Governor Cuomo are also considering possible legal challenges.