February 26, 2019

Final rule could bar Planned Parenthood from receiving Title X funds

Daily Briefing

    The Trump administration on Friday finalized a rule that bars abortion providers and clinics that refer patients for abortion care from receiving Title X family planning grants.

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    Final rule details

    The final rule, which the administration first proposed in May 2018, 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. Though providers under the final rule can refer patients for emergency abortion care when necessary

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    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 Title X recipients to refer pregnant patients for prenatal care. Under the final rule, Title X family planning grant recipients are permitted—but not required—to give patients a list of "licensed, qualified, comprehensive primary health care providers (including providers of prenatal care), some, but not the majority, of which also provide abortion as part of their comprehensive health care services." However, under the final rule the list may only be provided when a patient explicitly requests a referral for abortion services, and it may not identify which providers offer abortion 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 not face penalties for choosing not to offer access to every medically approved form of contraception. Instead, grantees are 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 administration last year sought to allow more employers to seek exemptions from the Affordable Care Act's (ACA) contraceptive coverage rules based on moral or religious grounds. However, a federal judge issued a temporary injunction to block the rules while a lawsuit against them progresses.

    In addition, the final rule sets new standard 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 is scheduled to take effect 60 days after it is published in the Federal Register. Once it takes effect, providers will have 120 days to comply with the final rule's requirements that family planning services be financially separate from abortion services, and one year to comply with requirements that family planning and abortion services be physically separate.

    Implications

    The final rule could make providers such as Planned Parenthood and other women's health centers ineligible for Title X grants, and shift more funding to faith-based groups.

    Previously, such providers received Title X funds to provide basic health services—such as contraceptives, pregnancy tests, and screenings for sexually transmitted infections—but also provided abortion services and referrals. Federal regulations prohibit the use of federal funds for abortion services, but previously did not bar providers from using nonfederal funds for such services or make providers who offer abortion services ineligible for Title X grants.

    According to the Washington Post, the final rule could result in Planned Parenthood—which provides services to about 40% of the four million people who receive care under Title X funds—losing up to $60 million a year.

    The majority of U.S. residents who could be affected by the proposed rule would be those who are uninsured, particularly in states where officials have not expanded Medicaid under the Affordable Care Act.

    States, Planned Parenthood to sue HHS over final rule

    Washington Attorney General (AG) Bob Ferguson (D) on Monday said he will file a lawsuit against the final rule and seek an injunction to block the rule from taking effect while the lawsuit proceeds. Ferguson said, "We will not allow the federal government to dictate what a provider can or cannot say to a patient."

    California AG Xavier Becerra (D), New York AG Letitia James (D), and Pennsylvania AG Josh Shapiro (D) separately have vowed to challenge the final rule.  

    Emily Stewart, vice president of public policy for Planned Parenthood, also said the organization is prepared "to fight this rule through every possible avenue."

    Some praise final rule, say it will stand up to legal review

    But antiabortion-rights advocates praised the final rule, which has been dubbed the "Protect Life Rule."

    Marjorie Dannenfelser, president of the Susan B. Anthony List, in a statement said, "The Protect Life Rule does not cut family planning funding by a single dime, and instead directs tax dollars to entities that provide health care to women but do not perform abortions." She said the final rule represents a "decisive action to disentangle taxpayers from the big abortion industry led by Planned Parenthood."

    House Minority Whip Steve Scalise (R-La.) said the final rule will ensure that "faith-based health organizations will no longer be forced to compromise their pro-life principles to receive government funding."

    Further, some groups contended that the final rule will stand up to legal review, noting that the Supreme Court upheld a similar rule issued under former President Ronald Reagan's administration.

    Americans United for Life in a statement said, "In 1991 Rust v. Sullivan, the U.S. Supreme Court upheld very similar regulations, holding that because there is no right to government funding, the government could condition receipt of federal funds on foregoing providing and promoting abortion" (Hellmann, The Hill, 2/22; Morse, Healthcare Finance News, 2/22; Eunjung Cha, Washington Post, 2/22; Belluck, New York Times, 2/22; Axelrod, The Hill, 2/22; Cohen, Inside Health Policy, 2/22 [subscription required]; HHS final rule, accessed 2/25; Gutman, Seattle Times, 2/25).

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