On Friday, the Trump administration quietly handed social conservatives what may be their biggest victory yet. After failing to repeal the Affordable Care Act and defund Planned Parenthood, despite Republican control of both chamber of Congress for two years, the administration has released a rule change that goes at least partway toward the latter goal.
Ignoring Congress, which has passed no legislation on this subject, Trump administration rules will now mandate that no organization that even mentions abortion services can receive federal funds. (Federal funds are already prohibited from funding abortion services themselves.)
The Department of Health and Human Services announced that the new rule will forbid “the use of Title X funds to perform, promote, refer for, or support abortion as a method of family planning.” Formally known as the Protect Life Rule, this resembles a similar “gag rule” that already applies to federal funds allocated to reproductive health organizations operating abroad. Trump’s new regulation would apply the “gag rule” to family planning clinics in the U.S.
This may be intended as a shot in the arm to Trump's anti-abortion supporters, especially on the religious right. It is also a potential violation of the First Amendment, since it appears to require government infringement of a doctor’s ability to speak freely with patients about legal, safe and customary health care options as a requirement for federal assistance.
Trump’s new rule targets Planned Parenthood in particular because Title X Family Planning is a $286 million-a-year federal grant program for organizations which provide reproductive health services to low-income women. Planned Parenthood serves about 40 percent of Title X patients and provides both abortions (at some of its clinics) and referrals to abortion providers as part of its family planning and reproductive health services. Clinics must be "physically and financially" separate from abortion providers to be eligible for Title X funds. The proposed rule would potentially strip Planned Parenthood of more than $60 million in federal assistance, all without congressional approval.
Planned Parenthood president Dr. Leana Wen said on Friday that “the Title X gag rule will essentially dismantle this critical federal program” and that in many remote or rural areas of the U.S., Planned Parenthood is “the only provider who participates in the program.”
Enacted in 1970, the Title X program currently provides 4 million low-income people access to reproductive health services, including birth control, STI testing, mammograms and cancer screenings. Since Title X was enacted its funds have always been prohibited from paying for abortion services. A similar prohibition to the new rule was implemented under Ronald Reagan's administration in 1988. It was upheld by the U.S. Supreme Court, but was never implemented, and was rolled back under Bill Clinton’s administration in 1993.
Trump’s new “gag rule” will take effect 60 days after it is published in the federal register. If Friday's news is any guide, there will be plenty of pushback. "This nation has a cruel tradition of exploiting black and brown bodies, especially women's bodies, and this rule fits snugly within that tradition," said Susan Berke Fogel, director of reproductive health at the National Health Law Program.
Anti-abortion activist Lila Rose celebrated the rule change as a “crucial step in the right direction,” meanwhile. Tony Perkins, president of the Family Research Council, said that the “finalized ‘protect life rule’ draws a bright line between abortion and family planning programs.”
“Abortion is neither health care nor family planning which is why the Title X program has no business funding it,” March for Life president Jeanne Mancini echoed in a statement.
But Democratic states and Planned Parenthood are already threatening lawsuits against the new gag rule.
“Planned Parenthood will fight the Trump-Pence administration through every avenue so this illegal, unethical rule never goes into effect,” Dr. Wen, said on a Friday conference call with reporters.
“We stand ready to take any and all legal action to protect women’s health and rights,” California Attorney General Xavier Becerra said in a statement, after the administrator for the Title X program in California reported that the new rules would likely result in increased wait times and delays for care.
New York Attorney General Letitia James also threatened "legal action," calling the new rule "dangerous" and "unnecessary." And Gov. Jay Inslee of Washington announced on Friday that his state is considering legal action.
Neomi Rao, Trump’s nominee to replace Supreme Court Justice Brett Kavanaugh on the D.C. Court of Appeals, now serves as the federal administrator of the Office of Information and Regulatory Affairs (OIRA) and is tasked with overseeing the rules change program. Last week, a group of Democratic lawmakers wrote to Rao to note that “numerous major medical associations, 15 governors, 200 members of Congress, more than 20 state and local health departments, and more than 500,000 members of the public submitted comments opposing the rule on constitutional, legal, ethical, and policy grounds.”
They expressed concern that Trump’s “gag rule” would be finalized before HHS had “conducted a comprehensive cost-benefit analysis of the rule’s potential economic and health impacts.”
“Of particular concern, HHS declined to deem the Title X rule economically significant — completely disregarding the considerable health-related costs the rule would impose — and failed to conduct a comprehensive regulatory impact analysis,” wrote Rep. Elijah Cummings of Maryland, along with Sens. Patty Murray of Washington, Kamala Harris of California and Maggie Hassan of New Hampshire.