Health and Human Services Promulgates New Abortion “Gag” Rule; Opponents Prepare for Legal Challenges

Seth Johnson
Associate Editor
Loyola University Chicago School of Law, JD 2020

On February 22, 2019, the Department of Health and Human Services submitted a final rule to the Federal Register, substantially altering existing guidelines for family planning programs’ reception of federal funds under Title X of the Public Health Service Act (PHS Act). Among other things, the new regulations prohibit qualifying programs from referring patients to abortion providers. Public statements from organizations such as Planned Parenthood suggest lawsuits for injunctive relief are imminent.

The Public Health Service Act (1970)

Title X of the PHS Act was enacted during the Nixon administration with the aim of improving access to family planning and preventative healthcare services. The Act authorized the secretary of the department of Health and Human services to award grants and enter into contracts with public and nonprofit agencies toward those aims.  Section 1006(a) granted rulemaking authority to the Secretary of Health of Human Services, as well as broad discretion in exercising the same. Section 1008 of the Act explicitly prohibits any funds appropriated for Title X purposes from being used “in programs where abortion is a method of family planning”. Taken together, these two sections have allowed for contradictory shifts in policy from administration to administration.

Reagan and Bush Administrations (1988-1991)

The current administration seems to be taking its cues from earlier and no less controversial regulations issued under Ronald Reagan in 1988. The 1988 rules prohibited Title X programs from counseling on abortion, referring abortions, or using funds received to lobby or take other legal action in support of abortion. Litigation ensued, eventually reaching the Supreme Court in Rust v. Sullivan (U.S 1991). The court upheld the restrictions, finding that section 1008 of the PHS Act was fairly ambiguous. In light of the ambiguity, the Court found that deference under the Chevron doctrine was appropriate.

Clinton Administration to Present

In 2000, the Secretary of Health and Human Services not only abolished the 1988 restrictions, but also imposed a duty to refer patients to abortions upon request. This was done primarily by adopting a “neutral” standard, whereby so long as a funds did not actively support abortion procurement, they could still be accessed by programs that paid dues to abortion supporting groups, or by programs that performed abortions but kept functions receiving Title X funds sufficiently distinct from abortion. Despite the statutory language of section 1008 clearly intending to prevent Title X funds from being used for abortion, the Clinton regulations explicitly included “pregnancy termination” as one of the categories of information that Title X programs must include in order to receive funds.

Obama Administration

One month before President Obama left office, Health and Human Services issued a final rule prohibiting Title X programs from exercising discretion to refrain from making subawards to other entities for any reason other than the entities’ inability to provide Title X services. The rationale behind the rule was to prevent state agencies receiving Title X funds from withholding those funds on the basis of state policies against abortion providers. This rule took effect several days prior to President Obama leaving office, but was quickly nullified under the Congressional Review Act. The main significance of the rule is that it serves as a yardstick for the evolution of Democratic policy-makers’ approach on the abortion restriction of section 1008.

The 2019 Rules

The new rules are substantially similar to the 1988 regulations, but go even further. For example, the rules require not only that Title X fund recipients refrain from political spending and lobbying for abortion, but also that they maintain separate facilities for any programs receiving funds if the organization administering the program also performs abortions. The rules’ repeal of the 2000 regulations’ requirements that recipient programs provide information about abortion on request may open the doors to anti-abortion clinics and so-called “crisis pregnancy” centers becoming eligible to receive Title X funds. Although much media focus has been brought to the “gag” rule aspect of the regulations, perhaps the greatest compliance challenge is the physical separation requirement. The new regulations anticipate this by providing a full year of grace period before compliance with this provision is required.

The Costs

Critics estimate that compliance will have substantial costs, both practically speaking and normatively. Planned Parenthood receives $60 million per year through Title X, constituting about 40% of all clinics involved in the Title X scheme. Planned Parenthood has already publicly declared it will not accept any Title X funds if the regulations hold, as it is simply unwilling either to physically separate its non-abortion services from facilities where abortions are also performed, or to refrain from referring its patients to abortion providers. Other organizations such as the National Medical Association anticipate that a loss of funding for Planned Parenthood will adversely affect other Title X recipients through higher case-loads. Given the stakes and the rhetoric, expect lawsuits from multiple parties this week.