In a huge blow to health care access for the millions of Americans who rely on Title X-funded clinics for everything from contraception to cervical cancer screenings, the Ninth Circuit Court of Appeals has ruled that the Trump administration’s domestic gag rule—which would prevent clinics funded by the family-planning program from referring their patients to abortion providers—can go into effect, even as the fate of the gag rule continues to be litigated in the courts. The rule, if fully implemented, will have a disproportionate impact on women of color and poor women who rely on Title X-funded clinics like Planned Parenthood to access critical reproductive health care.
As Jezebel has reported, the Title X rules finalized by the Department of Health and Human Services in February of this year go beyond just banning abortion referrals for groups that receive federal family-planning funds. It also opens the program’s funding to pregnancy crisis clinics and faith-based organizations, and is a clear effort to direct federal funds away from clinics like Planned Parenthood and towards anti-abortion, anti-contraception groups:
The grant program is now based on a new points system that, among other things, works to favor providers that “assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents.)” “Natural family planning,” which the rules note is now called “Fertility Awareness Based Methods,” is exactly what it sounds like.
Though the new Title X language encourages the “applications for all methods,” but throughout the document fails to mention contraception, birth control, or Quality Family Planning recommendations which are the national standard of care for family planning services used by the Centers for Disease Control and Prevention, as well as the US Office of Population Affairs. It does, however, mention “natural family planning” numerous times.
In addition, the new rules encourage groups who offer “a holistic vision of health and those historically underrepresented in the Title X program,” to apply for the grant program. Experts argue that much of the language is tailored to crisis clinics who are one of the few organizations that offer abstinence-only education or natural family planning. But if the language signals to crisis clinics that they are now eligible for Title X grants, then the specifics of the rules are even clearer. The grant program is designed to encourage providers that offer a single method of family planning like the kind of natural family planning offered by religious providers, as well award them points under the new system. The guidelines state that “single providers who have developed expertise in one family planning approach or method may be partners in a broader proposal that offers a broad range of family planning methods.”
In March, the American Medical Association and Planned Parenthood, along with the attorney generals of 21 states, filed two separate lawsuits challenging the Trump administration’s domestic gag rule. Due to take effect in May, the gag rule was halted by lower federal courts that issued temporary injunctions. On July 3, after a three-judge panel issued a decision saying the Trump administration’s rule change should go into effect even in the midst of the legal battle, the Ninth Circuit issued another preliminary stay.
But on Thursday, the court declined to issue a stay, effectively putting the gag rule into effect. Though the language of the decision suggested that the court might rehear the appeal, some clinics and states have already taken steps to withdraw from accepting federal funds from the program. “At least one grantee, Washington state, began using only state funds for its family planning program to minimize any uncertainty of whether doctors could make abortion referrals,” Politico reported, and clinics and health care organizations around the country have stated that they will refuse to accept Title X funds if the rule goes into effect.
As Robert Hayes, the CEO of the Community Healthcare Network, an organization that currently receives about $700,000 in Title X funding every year, put it, “We’re not going to commit malpractice here. We’re not going to lie to patients.”
Update (July 12, 11:09 a.m.): We have updated the post to reflect that Robert Hayes is the CEO of the Community Healthcare Network.