On April 15, 2021, the U.S. Department of Health and Human Services (HHS) issued a notice of proposed rulemaking (NPRM) that would reverse Trump administration Title X regulations that ultimately led Planned Parenthood to withdraw from the Title X program and forego those taxpayer dollars.
Title X of the Public Health Service Act, enacted in 1970, provides financial support for healthcare organizations offering voluntary family planning services. The Act explains that Title X projects “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).” Section 1008 of the Act prohibits Title X funds from “be[ing] used in programs where abortion is a method of family planning.”
In 2019, HHS updated its Title X regulations (last revised in 2000) to increase compliance with Title X’s statutory mandates and stop Title X funds from subsidizing abortions. The 2019 Rule requires, among other things, physical and financial separation between Title X projects and the provision and promotion of abortion services—a requirement in Title X’s 1988 regulations that was ultimately upheld by the Supreme Court in Rust v. Sullivan. In contrast to the 2000 regulations, the 2019 regulations no longer require pregnancy counseling on, and referral for, abortion. They permit (unlike the 1988 regulations) non-directive pregnancy counseling on abortion. Although the 2019 Rule prohibits abortion referrals, it permits Title X providers to give clients a health care provider referral list that includes some providers who perform abortions.
Planned Parenthood, along with a number of healthcare organizations and states—including California under then-Attorney General and now-Biden HHS Secretary Xavier Becerra—sued HHS in multiple federal courts to stop the 2019 Rule from going into effect. An en banc Ninth Circuit found the rule lawful in California v. Azar, while the en banc Fourth Circuit upheld an injunction against the rule but only as to Maryland in Mayor of Baltimore v. Azar.
Rather than comply with the 2019 Rule’s requirements related to physical and financial separation and the prohibition against abortion referrals, Planned Parenthood (and other Title X providers) chose to withdraw from the Title X program, forfeiting the associated government funding.
Parties in both the Ninth and Fourth Circuit cases appealed to the U.S. Supreme Court, which granted the petitions for certiorari on February 22, 2021, consolidating the appeals (No. 20-429). HHS, now under Secretary Becerra, joined with the other side and filed joint stipulations to dismiss the appeals on March 12. It informed the Court on April 15 that it issued a NPRM proposing to rescind the 2019 Rule and anticipates having a new rule in place by early fall and effective before the 2022 Title X program funding announcement. At the time of publication, the appeals are still pending before the Supreme Court.
HHS’s proposed Title X rule, entitled “Ensuring Access to Equitable, Affordable, Client-Centered, Quality Family Planning Services,” claims that with Planned Parenthood and other Title X providers dropping out of the program, the 2019 Rule has “undermined the public health of the population the program is meant to serve.” The NPRM proposes to rescind most of the 2019 Rule, including the physical and financial separation requirements, and require Title X projects to offer nondirective pregnancy counseling, including counseling on, and referrals for, abortion. Although the NPRM states “individuals and grantees with conscience objections will not be required to follow the proposed rule’s requirements regarding abortion counseling and referral,” nothing in the text of the proposed regulations acknowledges such a protection.
The proposed rule is largely a readoption of the 2000 regulations with several modifications. Consistent with Biden’s executive order to “advance equity” across the federal government, the NPRM proposes to revise the regulations so that “family planning services are required to be client-centered, culturally and linguistically appropriate, inclusive, trauma-informed, and ensure equitable and quality service delivery consistent with nationally recognized standards of care.” In determining whether to award Title X project funding, HHS proposes to consider an additional criterion of “the ability of the applicant to advance health equity.”
In the NPRM, HHS is critical of state restrictions on subrecipient eligibility of “otherwise qualified providers” to partner with the state in its Title X program “based either on the non-Title X activities of the providers or because they are a certain type of provider.” This is a thinly veiled reference to state policies that prohibit Title X and state family planning funding from going to Planned Parenthood and other abortion providers. HHS invites comments on ways it can “ensure” Title X projects “do not undermine the program’s mission by excluding otherwise qualified providers as subrecipients.”
For those interested in weighing in on the proposed rule, public comments are due by May 17, 2021, and can be submitted at http://www.regulations.gov, searching for RIN 0937-AA11.