The recent Title X changes enacted by the Trump administration are creating major ethical dilemmas and operational challenges for family planning and reproductive health clinics nationwide.

“This rule has forced providers into a no-win situation. Long-term providers are being driven out of the program,” says Robin Summers, JD, vice president, healthcare strategy and analysis, and senior counsel, National Family Planning & Reproductive Health Association (NFPRHA) in Washington, DC.

The U.S. Department of Health and Human Services (HHS) revised Title X regulations through a notice of rulemaking, published March 4, 2019, in the Federal Register. (The Notice of Final Rule is available at: https://www.hhs.gov/opa/title-x-family-planning/about-title-x-grants/statutes-and-regulations/index.html.)

The rule change included these main features:

  • Title X recipients must ensure clear physical and financial separation between a Title X program and any activities that fall outside the program’s scope, including abortion services. The July 3, 2000, regulation required no physical separation and only limited financial separation.
  • Title X recipients may not provide referrals, counseling, and information about abortion services. The 2000 regulation said Title X projects could provide abortion referral and nondirective counseling on abortion, if requested. The new rule states, “The department believes this requirement is inconsistent with federal conscience laws.”
  • The new rule also requires that Title X providers encourage appropriate family participation in family planning decisions. It emphasizes family participation with minors seeking family planning services. It reads, “The department will continue to enforce compliance with this provision.”

Weighing Ethics, Fiscal Viability

Title X family planning and reproductive health providers have to weigh ethics against fiscal viability. The physical separation provision means that if a family planning center wants to continue to offer abortion counseling or services, it can only offer these in a physically separate space from their other reproductive health services.

“It is incredibly cost-prohibitive to have separate space,” says Julie Rabinovitz, MPH, president and chief executive officer of Essential Access Health in Berkeley, CA. “That’s an awful experience for patients to go out to the shed in the back for counseling, and that’s terrible patient care. We are committed to providing comprehensive, quality care on a continuum.”

Also, the Title X change removes the requirement that Title X clinics only can offer medically approved contraception, Rabinovitz says.

“That is a big concern to us, and there is a focus with this administration on natural family planning,” she says. “In California, for the first time ever, a crisis pregnancy center was funded.”

More continue to receive federal Title X funds, even though they offer women no medical services and tell pregnant women to not kill their baby, Rabinovitz adds.

The Trump administration’s rulemaking on Title X is based on a model that was tried in the Reagan administration, but it went beyond that, says Ruth Harlow, senior staff attorney for the American Civil Liberties Union Reproductive Freedom Project in New York City.

“This rule is more insidious and sweeping than the rule proposed in 1988,” Harlow says. “What’s happening now is unprecedented in terms of a network having to try to comply with these very difficult rules.”

Clinicians and providers have worked hard to cope with the Title X changes, and some have been creative in seeking other funding, Harlow notes.

“But it may mean, in certain geographic locations, clinics or hospitals or doctors’ offices might see an unusual influx of patients needing new caregivers because [the Title X clinic] where they used to go is not available anymore,” she adds.

In some states where Title X clinics have closed, state governments have stepped up to fund similar access. This provides a solution, but is draining state coffers of money that might be needed elsewhere, Harlow says.

“There have been workarounds, but it’s very unfortunate because the whole reason for this program at the federal level is to fill in holes and make sure there is nationwide access to reproductive health services,” Harlow says.

Clinics that continue receiving Title X funding also find it challenging to interpret the new rule. “The rule is so vague with regard to the actual mechanics of compliance that providers around the country are struggling right now with what they can do,” Summers says. “It is incredibly difficult for providers to continue to offer the full range of services that the rule even allows them to do, and to understand they aren’t putting themselves at risk by doing it.”

Federal regulators have offered no guidance for Title X providers, she adds. “One of the hallmarks of Title X is that everyone receives an equal opportunity to contraceptive methods of their choice, and this rule has undermined that,” Summers says.