Title X Problems Worsen with Recent Court Decision
Rule decimates Title X network
EXECUTIVE SUMMARY
The recent Title X changes have proven devastating to women depending on family planning centers for their reproductive healthcare needs.
- The 9th U.S. Circuit Court of Appeals ruling upheld the Trump administration’s gag rule that prohibits Title X providers from referring patients for abortion care or even answering questions about abortion.
- The ruling decimated the Title X network, causing hundreds of clinics to pull out of Title X and affecting tens of thousands of patients nationwide.
- Data show that voters want women to have more access to birth control and family planning services.
More than 1 million patients of family planning centers lost their Title X access in the past couple of years because of the Trump administration’s rules prohibiting providers from discussing all reproductive health options with their patients. The final rule was issued by the U.S. Department of Health and Human Services (HHS).
Family planning advocates hoped to overturn the ruling in federal court, a strategy that became less likely after the Feb. 24, 2020, ruling by the 9th U.S. Circuit Court of Appeals upholding the gag rule. The 9th Circuit, which ruled without the full administrative record, found the Title X rule is lawful.
Another court ruling applies only to the state of Maryland. The U.S. District Court for the District of Maryland ruled in favor of Baltimore’s legal challenge to the Title X rule changes. (More information can be found at: https://www.nationalfamilyplanning.org/baltimore-summary-judgement-statement?erid=2247968&trid=0e0d759c-b553-47d4-9f19-b684e0906082.)
“The district court judge ruled that HHS adopted the Title X regulation in a capricious manner and that it should be vacated,” says Ruth Harlow, JD, senior staff attorney for the American Civil Liberties Union Reproductive Freedom Project in New York City. “But the judge only issued that decision to be effective in the state of Maryland, and it’s a national rule.”
There are other cases still pending in courts over the Title X changes, she notes. “I think the different litigating groups are trying a variety of options to try to get to a point where we have the rule vacated everywhere,” Harlow explains. “The Baltimore court held that the agency promulgated the rule in an improper way. If you prove such a claim, the rule should have been set aside.”
The final rule, released Feb. 22, 2019, requires strict physical and financial separation of Title X services from abortion services. Title X providers cannot refer patients for abortion care or offer information and counseling that includes abortion information. (See “Title X Final Rule Is Troubling for Providers” in this issue.)
“The rule has had a decimating effect on our network,” says Julie Rabinovitz, MPH, president and chief executive officer of Essential Access Health in Berkeley, CA.
Essential Access Health celebrated its 50th anniversary in 2019, the same year that the organization saw the number of Title X clinics plummet from 366 to 217 because of the rule. Since then, the number of clinics has risen to 251, but this could fluctuate as another new rule goes into effect.
“We’re the lead Title X grantee in California,” Rabinovitz says. “Title X was a law signed by President Nixon.”
Essential Access Health will continue accepting Title X funding, she says. “We’ll continue to participate in the program, and we know the majority of health centers will continue, but several will drop out of the program,” Rabinovitz says.
Voters Want Access
Voters want greater access to family planning services, not less, according to data from public polling about Title X services, says Cate Gormley, vice president, Lake Research Partners in Washington, DC. Lake Research Partners conducted a poll about Californians’ perceptions of family planning for Essential Access Health.
“They feel very positively toward birth control, and they feel very positively toward family planning,” Gormley says. “We could say from the polls that voters want individuals to make decisions about what works for them, and they don’t want to see any politician on either side of the aisle interfere with family planning that works best for individuals.”
The poll also found that California respondents did not approve of the Trump administration’s changes to Title X, which do not allow providers to give women information about all of their pregnancy options — even if they request that information, she says.
“People were concerned about the gag rule piece of the administration changes,” Gormley says. “People thought that if the change were implemented, it would make it harder for women to access birth control.” (Results of the poll are available at: https://www.essentialaccess.org/programs-and-services/title-x/birth-control-support-strong-among-california-voters.)
That fear has been realized across the country, where about 900 Title X sites withdrew from the program after the final rule went into effect in 2019, Harlow says.
“Those providers were unwilling to comply with rules and requirements around pregnancy counseling that did not allow for a referral to abortion at women’s request,” Harlow says. “As soon as a huge number of sites were lost to the program — and those were sites where most patients were seen — 50% of [Title X] patients are no longer in the program.”
‘The Damage Is Significant’
Despite the efforts of many of the providers to stop the final rule through court challenges, the rule already has had a tremendously negative effect, Harlow adds.
“This rule is wreaking havoc on communities,” says Robin Summers, JD, vice president, healthcare strategy and analysis, and senior counsel, National Family Planning & Reproductive Health Association (NFPRHA) in Washington, DC. “About 1.5 million people have lost access to [Title X-funded] family planning care,” she explains. “The damage is significant.”
From NFPRHA’s perspective, the rule was intended to erode access to contraceptive care. “This rule absolutely puts more strain on a system that already was struggling to meet demand. Now, it’s unable to serve 1.5 million people,” Summers says. “That system is already dramatically strained, and it puts further strain on it.” Cost is a barrier to women seeking contraception, she adds.
Women with health insurance have access to high quality and affordable contraceptives because of the Affordable Care Act (ACA), which pays for contraception at no cost to the women, Summers says. “But the ACA does nothing to address low-income people who don’t have insurance coverage. This is what the focus of Title X has been since enacted,” she adds.
“Title X serves anyone who wants high-quality care in contraceptive and family planning,” Summers continues. “It will make it that much harder for Title X providers to continue to provide high-quality care across the country. It will make them stretch scarce resources even further.”
The final piece of the HHS rule went into effect March 4. This also has a negative effect on family planning services at Title X clinics, Harlow says.
“This final piece requires Title X providers to separate their Title X activities, physically, from all kinds of things that may be related to abortion, including referrals for abortions,” Harlow explains. “It covers electronic health records, staff, and all kinds of infrastructure.”
Family planning providers must use duplicate facilities and systems for Title X projects. It is not financially feasible for family planning centers to physically separate their services and activities, Rabinovitz says.
“What healthcare organizations are allowed to do — and we received confirmation from HHS — is offer the option of counseling done by a physician or an advanced practice provider, but they cannot refer a patient for an abortion,” she explains. “They can hand patients a list of all different providers that provide comprehensive primary care and prenatal care, and some of these may offer abortion services. But you may not tell patients which ones offer abortion services, and you can’t just put Planned Parenthood on the list.”
HHS even says that fewer than 50% of organizations on the list can offer abortion services. “We can’t just tell volunteers to give them more information, because we’re responsible for implementing federal law,” Rabinovitz adds.
The recent Title X changes have proven devastating to women depending on family planning centers for their reproductive healthcare needs. The 9th U.S. Circuit Court of Appeals ruling upheld the Trump administration’s gag rule that prohibits Title X providers from referring patients for abortion care or even answering questions about abortion.
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