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Federal Funds Can Be Withheld From Family Planning Clinics That Refer to Abortion Providers

CHICAGO, IL - MAY 18:  A sign hangs above a Planned Parenthood clinic on May 18, 2018 in Chicago, Illinois. The Trump administration is expected to announce a plan for massive funding cuts to Planned Parenthood and other taxpayer-backed abortion providers by reinstating a Reagan-era rule that prohibits federal funding from going to clinics that discuss abortion with women or that share space with abortion providers.  (Photo by Scott Olson/Getty Images)
By Joseph Fawbush, Esq. | Last updated on

If you are looking for family planning services and have limited access to medical providers, you may end up at a clinic funded at least in part by Title X. Title X federal grants help clinics provide low-income Americans with reproductive planning, HIV and STD prevention, cancer screenings, and other services. Whether those services may include mentioning clinics that provide abortions was the subject of a recent notable case out of the Ninth Circuit.

Title X Funding and Abortion

There is a long legislative history regarding Title X due to the controversy surrounding pregnancy termination. Under federal law, Title X grants cannot be used "in programs where abortion is a method of family planning." Initially, this prohibited funding clinics where abortion was even discussed as an option. However, later regulations relaxed that rule, in part because Congress enacted subsequent laws regarding Title X funding. One of those mandates to the Department of Health and Human Services was that "all pregnancy counseling shall be nondirective." In other words, clinics that receive Title X funding cannot suggest one course of action over another regarding pregnancy planning.

In 2019, the HHS issued a new rule with much more stringent requirements to get funding. The rule prohibits Title X funding for clinics that "perform, promote, refer for, or support abortion as a method of family planning . . . or take any other affirmative action to assist a patient to secure such an abortion." In addition, every patient who is confirmed to be pregnant must be referred to prenatal care. This means that clinics cannot identify any medical facilities that perform abortions, and the provider must suggest prenatal care regardless of the patient's desire to continue the pregnancy.

Does the HHS Rule Violate Previous Federal Law?

The question before the Ninth Circuit was whether the HHS rule ran counter to Congress' previous acts. Namely, a 1996 Congressional appropriations rider that mandated Title X pregnancy counseling services be "nondirective" and a 2010 Affordable Care Act provision that prohibited the HHS from implementing any rule that "interferes with communications regarding a full range of treatment options between the patient and the provider."

A majority on the Ninth Circuit Court of Appeals said that the HHS rule did not run counter to those laws. A provider does not need to discuss all treatment options to be "nondirective" the majority held, just present some options neutrally. Further, the majority interpreted the ACA provision as applying only to other requirements within the ACA.

According to the dissent, "excluding an entire category of options is neither meaningful nor neutral." Further, the dissenting judges felt that not only did the ACA apply, but the HHS rule violated three separate provisions.

The Debate Goes On

The Ninth Circuit's en banc ruling may be the final word on the matter of the 2019 HHS rule. However, the larger question of abortion access continues. The HHS itself has often waffled on its position regarding Title X depending on the current administration. Meanwhile, the Supreme Court is set to hear another case regarding which medical providers can offer abortions on March 4. Planned Parenthood has already withdrawn from Title X funding in response to the rule.

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