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June 24, 2019

Federal court lets rule barring abortion providers from Title X funds take effect

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    A federal appeals court on Thursday allowed an HHS final rule to take effect that bars providers and clinics that receive Title X family planning grants from providing or referring patients for abortion care in the same locations they provide family planning services.

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    About the final rule

    HHS in February issued the final rule, which requires recipients of Title X family planning funds "to separate their Title X project—physically and financially—from any abortion activities." As such, the final rule prohibits the federal government from dispersing Title X family planning funds to health care providers that offer abortions and abortion referrals in the same locations that they offer family planning services. However, providers under the final rule can refer patients for emergency abortion care when necessary.

    The final rule also eliminates a federal policy that requires health care providers to offer abortion counseling to qualify for Title X family planning funds, and instead requires that Title X recipients refer pregnant patients for prenatal care.

    In addition, the final rule broadens the definition of "family planning" to include adoption, abstinence, infertility management, and natural family planning. Under the final rule, providers will be required to offer "a broad range of … methods and services," which do not all have to be medically approved.

    The final rule also seeks to address a coverage gap for U.S. residents whose employers do not offer health insurance coverage for contraceptives.

    The final rule also sets new standards for minors seeking care. The final rule states that in instances when an "unemancipated minor wishes to receive services on a confidential basis and be considered on the basis of her/his own resources," providers are "required to document in the minor's medical records the specific actions taken by the provider to encourage the minor to involve her/his family (including her/his parents or guardian) in her/his decision to seek family planning services." The final rule "encourage[s] … family participation in family planning decisions of minors except where the minor is or may be the victim of child abuse or incest."

    The final rule was scheduled to take effect May 3. However, federal judges in California, Oregon, and Washington issued preliminary injunctions blocking the final rule. The administration has appealed each of those injunctions, The Hill reports.

    Appeals court allows Trump admin to implement final rule

    A three-judge panel for the 9th U.S. Circuit Court of Appeals on Thursday ruled unanimously to allow the final rule to take effect as the administration challenges the preliminary injunctions. The panel in their ruling wrote that the final rule is "reasonable interpretation" of Title X, and the administration likely will be successful in showing the final rule should be upheld, Reuters reports.

    The panel also wrote the final rule supports the public interest because it ensures tax funds are not allocated to fund or subsidize abortions. "Absent a stay, HHS will be forced to allow taxpayer dollars to be spent in a manner that it has concluded violates the law," the judges wrote.

    According to The Hill, it is unclear when the administration will implement the final rule. When the rule does take effect, providers will have 120 days to comply with the its requirements that family planning services be financially separate from abortion services, and one year to comply with its requirements that family planning and abortion services be physically separate.


    HHS Secretary Alex Azar said, "We are pleased that the 9th Circuit has recognized that there is no need to hold up the new family planning rules that enforce laws on the books and revert substantially to rules that the Supreme Court upheld decades ago." He added, "This decision is a major step toward the … administration being able to ensure that all Title X projects comply with the Title X statute and do not support abortion as a method of family planning."

    However, Planned Parenthood President Leana Wen in a statement said, "The news out of the Ninth Circuit this morning is devastating for the millions of people who rely on Title X health centers for cancer screenings, HIV tests, affordable birth control, and other critical primary and preventive care."

    California Attorney General (AG) Xavier Becerra (D), Oregon AG Ellen Rosenblum (D), and Washington AG Bob Ferguson (D) similarly said the court's decision puts health care access at risk for millions of U.S. residents. Rosenblum said Title X funds serve as a "a true safety net for low income women and families" (Miranda Ollstein, Politico, 6/20; Stempel, Reuters, 6/20; Lam, USA Today, 6/20; Hellmann, The Hill, 6/20).

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