Imagine that you are diagnosed with asthma, and there are five medical options to could help you, but your doctor is not allowed to tell you about all of them and can’t refer to you someone else who could. This is the situation that the Trump administration will be putting health providers and their patients in if recently introduced restrictions to the Title X family planning program go into effect.
In February, the Trump administration finalized the so-called “domestic gag rule” on the Title X Family Planning Program, the only federal program for family planning services. Under the current law, medical providers are required to inform pregnant patients about their full range of options—known as “nondirective counseling”—but the gag rule will prohibit clinics with Title X funding from referring patients to abortion providers or informing them about abortion. The rule changes do not go into effect for another two months, and groups have already filed lawsuits, but if they are implemented, they will put about 4 million low-income people, predominantly women of color, at risk.
“Because Title X primarily serves patients who are people of color, Hispanic, or Latino, the gag will add yet another layer of discrimination that will perpetuate health disparities and racial inequity,” Dr. Leana Wen, president of Planned Parenthood, told reporters on a press call on Tuesday. “If you’re wealthy and have private insurance, you can get the best medical care. But if you’re struggling to make ends meet, your doctor won’t even be allowed to give you the information you need to make the best choice for your health.”
On Tuesday, the American Medical Association and Planned Parenthood, alongside 21 state attorneys general, filed parallel lawsuits challenging the Trump administration’s domestic gag rule. Their hope is that a federal judge will deliver an injunction which will prevent the rule changes from going into effect before the 60-day window expires.
In 1970, Congress authorized the Title X program to deliver high-quality, low-cost reproductive healthcare, including providing pap smears, sex education, cancer screenings, and contraceptives, to low-income people with the goal of reducing the number of unwanted pregnancies. The program has been a success: without it, as of 2015, unintended teen pregnancies would have been 44 percent higher according to a 2017 analysis by the Guttmacher Insitute. While the program does not fund abortions, Republicans in Congress have tried to eliminate the program since 2011 as a means to defund Planned Parenthood, which receives about 40 percent of Title X’s funding. The Reagan administration drafted a version of the domestic gag rule, which was later reinterpreted and implemented by President George H.W. Bush with much confusion. President Bill Clinton suspended the rule and later, federal regulations officially reversed them.
The Trump administration’s rule change imposes several major limitations: First, it requires medical professionals to withhold information about abortion services or offer referrals to abortion providers. Second, anyone who is pregnant must be referred to prenatal care and may be referred to an adoption center, even if they express a desire to terminate a pregnancy. Third, clinics are required to implement costly financial and physical barriers, including creating separate accounting and health records and separate “treatment, consultation, examination and waiting rooms, office entrances and exits, shared phone numbers, email addresses, educational services, and websites” for “any activities that fall outside the program’s scope.”
The rule is a part of broader changes to Title X designed to support anti-abortion health centers and deter patients from seeking abortions. (As the Pacific Standard points out, the rules do not mention“fetus” but references the “unborn” nine times). While the changes severely restrict existing family planning providers, they cast a wider net to include providers who may steer pregnant patients away from abortion and networks that may promote the rhythm method and abstinence as contraceptive methods. Texas, which defunded Planned Parenthood in 2011, offers a bleak preview of what could come to pass nation-wide should the gag rule go into effect: 25 percent of the state’s family planning centers closed, and the state poured millions into an unvetted network of evangelical crisis pregnancy centers, most of which did not offer basic services like birth control.
Oregon Attorney General Ellen Rosenblum, along with 20 other state Attorneys General, claims that the rules are unconstitutional, impinging on the free speech of doctors and medical professionals. They are also in violation of the Affordable Care Act, they argue, saying that the rule would create unreasonable barriers and impede timely access to care, and violate principles of informed consent and restrict providers from giving patients all relevant information. “Not only are they not allowing referrals for abortion or provision of information about abortion as an option, but they are requiring prenatal services for all pregnant women even if they would like to choose to terminate their pregnancy,” Rosenblum told Jezebel. “The law requires non-directive pregnancy counseling. Medical providers are not supposed to be directing them to a particular option.”
The physical separation requirement “is really onerous,” she added. The restrictions are vague, and “every rule has to be interpreted.”
“It’s not 100 percent clear where the lines are drawn, but I think that in order to err on the side of caution,” she said of clinics who attempt to comply, “you would basically have to have separate clinics.”
Rosenblum hopes that a federal judge will stop the rule from going into effect before the 60-day window. “Of course, in the meantime, I’m sure that every clinic, large and small, is very concerned,” she said.
Over the next two months, clinics that rely on Title X funding must conduct a scary calculus: they can either forgo Title X funds altogether and attempt to make up the funding through other means, or, to stay afloat, they can spend money to comply with the rules–which are intentionally vague and up to the discretion of the Department of Health and Human Services—at the expense of ethical patient care. Or, they can wait and hope that a federal judge delivers an injunction before the rules go into effect.
Planned Parenthood, which filed a separate lawsuit, will no longer participate in Title X. “We will not ever violate our commitment to ethical patient care and we won’t participate in an unethical Title X program,” Emily Stewart, the Vice President of Public Policy at Planned Parenthood Federation of America, told Jezebel when the rule was finalized. “This would completely undermine the patient-provider relationship and harm the public’s health.”
But not every provider can afford to make that choice. “The providers are put in this incredibly awkward position of saying do I provide care that isn’t ideal and the level of quality that we’re used to doing, or do we give up the money and provide less care, but at the same level of quality. It’s an awful dilemma to put providers in if we can’t get this rule enjoined,” Lisa David, president and CEO of Public Health Solutions, which administers programs serving predominantly low-income people of color across New York City.
David was among a handful of providers, Title X grantees, and public officials who expressed concern over what might happen to patients should the rules go into effect at a roundtable discussion in New York Attorney General Letitia James’s office on Wednesday. New York is among the 21 states who filed the lawsuits, which collectively represent $100.7 million dollars of Title X funding at risk, according to Rosenblum’s office.
David was most concerned about “those most vulnerable—young people.”
The organizations administered under Public Health Solutions “use the money for teen clinics, they use it for sex education and outreach in schools, and they use it to be able to maintain available long-acting contraceptives, which are expensive, in their clinics so that they can do a same-day insertion. Those are the things, without Title X money, that would get cut back,” she said.
One primary care physician and OB/GYN said the gag rule would disrupt her ability to care for patients. “If you had a pregnancy that was jeopardized by medical conditions, the fetus’s life or your health and well-being,” she said, “I could not talk to you about the best option for you, and would not be able to perform the procedure on you.”
Another issue patients may face: They don’t necessarily know if their clinic is a Title X recipient, so they don’t know if the medical staff they’re seeing is gagged by law. Rose Duhan, president and CEO of Community Health Care Association of New York State, noted that because some centers across the receive Title X funding and some don’t, “People wouldn’t know when they are walking into a health center what kind of care to expect.” The rule changes “would really erode trust.”
Right now, clinics are stuck. Missouri Family Health Council, the sole grantee for the state of Missouri, administers Title X grants to a set of agencies that run 70 Title X-funded clinics throughout the state, including Planned Parenthood. Executive Director Michelle Trupiano says the organization has not yet issued directives on how to comply with the Title X changes “partly because the lawsuits are happening” and because “it’s not an immediate risk for us today.” Across the network, she estimates that about 35-40 percent of funding comes from Title X to clinics, on average, “but then we have some sites that rely on it for about 75-85 percent of their funding.”
“The rules, layered on top of the grant cycles, has just led to real uncertainty for all of our clinics in terms of funding and being able to keep their doors open and in compliance with the rules,” she said. “All of this uncertainty makes it really difficult to continue to doing the job that they are wanting to do,” she said, “trying to provide high-quality care to their patients.”
Ultimately, the rules are meant to restrict access to abortion. But, in what seems like a sick joke, abortion access is so devastatingly limited that, for providers in states where there’s only one remaining clinic, the rules might not have much of an impact on actual abortions.
Most of the patients who seek abortions at the Red River Women’s Clinic, the sole remaining abortion provider in North Dakota, hear about it through word-of-mouth, Google searches, or in the news. “It’s the fact that we’re the only clinic,” said clinical director Tammi Kromenaker. “You kind of have a high profile.”
“I think in North Dakota specifically, the nurses and nurse practitioners are providing for the first line of defense. It’s certainly going to be devastating to them,” she said. “Honestly, I’m not necessarily worried about how it’s going to affect our patients’ ability to access abortion in North Dakota. That’s already really tough. Being the only provider, patients have to travel 4-7 hours to receive their care and all the other hoops they have to jump through.”
Like Rosenblum, Kromenaker is hopeful that the lawsuits will shut down the law and turn it into a non-issue for clinics and their patients. Speaking of the lawsuits, she said, “I trust in those groups to fight the good fight and even though we’re in a very awful administration right now, I think that in the end, the professionals who actually run these organizations will not allow this to actually go into effect.”