EXECUTIVE SUMMARY

The U.S. Supreme Court will hear the multiorganization challenge to the former Trump administration’s Title X regulatory changes that caused one out of four Title X providers to leave the program.

  • The Biden administration said it will review the Title X changes, but did not suspend enforcement, at least through the end of February.
  • The Title X gag rule was a political move that cost many vulnerable women access to affordable reproductive healthcare.
  • Black, Latino, Indigenous, and rural populations have suffered the most under the Title X changes.

The U.S. Supreme Court will hear a case that could have a long-term effect on the operations of Title X programs and access to affordable reproductive health services for millions of women.

For the past two years, reproductive health organizations and advocates have challenged the former Trump administration’s Title X rule changes that prohibit Title X providers from mentioning or counseling on abortion. Court rulings were mixed, and one in four Title X providers left the program because of regulatory changes that included modifications to many sites’ physical space, as well as a gag rule about abortion.

For example, one of the main Title X regulatory changes was a rule that prohibited doctors and others in Title X clinics from mentioning abortion or counseling patients about abortion, even when asked about it as an option. Because of this prohibition, many Title X clinics pulled out of the program, leaving more than 1 million people, mostly economically vulnerable women, without access to Title X services.

In January, the Biden administration announced it would review the changes to Title X, but had not suspended enforcement of the changes through the end of February. (See story on Title X and Biden administration in March 2021 issue of Contraceptive Technology Update, available at: https://www.reliasmedia.com/articles/147573-new-year-new-president-affect-abortion-title-x-changes.)

“The U.S. Supreme Court granted Essential Access Health’s request to review our Title X challenge, submitted in the fall [2020],” says Julie Rabinovitz, MPH, president and chief executive officer of Essential Access Health in Berkeley, CA.

Legal challenges to the Title X regulatory changes by the U.S. Department of Health and Human Services (HHS) lost in a Feb. 24, 2020, decision by the 9th U.S. Circuit Court of Appeals.1

Essential Access Health, along with the American Civil Liberties Union (ACLU) and other organizations, filed a petition to the Supreme Court, which has requested briefs by mid-April. “It is our hope and expectation that long before oral arguments can be heard, the Biden administration will provide relief to organizations,” Rabinovitz says. “Title X organizations cannot wait for our case to play out; we need swift executive action right away.”

For instance, the Biden administration could suspend enforcement of the Title X gag rule, or it could say that HHS will not defend the case in court.

“We were very disappointed [with the Biden administration’s memorandum],” Rabinovitz says. “We believe the presidential memorandum, while it was a first step, really fell short.”

In 1993, President Bill Clinton’s new administration faced a similar challenge because of the Supreme Court’s 1991 decision to uphold the Title X abortion-counseling gag rule. President Clinton quickly directed HHS to suspend enforcement of the gag rule. “We’re now asking for swift action by the Biden administration,” she adds. “It needs to happen before oral arguments are due to the Supreme Court.”

The Trump administration’s rule brings immense harm to people who depend on affordable reproductive healthcare, including birth control, breast and cervical cancer screenings, and testing and treatment of sexually transmitted infections (STIs), according to a Feb. 22 joint statement by the ACLU, the American Medical Association, Essential Access Health, the National Family Planning & Reproductive Health Association, and Planned Parenthood Federation of America.

“Tragically, but predictably, this disproportionately impacts Black and brown patients who are more likely to face the worst health and economic impacts from the COVID-19 pandemic,” according to the statement.2

About one in four Title X providers left the program, and 1.5 million people lost their Title X reproductive health services.3 Planned Parenthood Federation of America was one of the organizations that pulled out of Title X because of the rule.

“The Title X gag rule is designed to target abortion providers to score political points; in practice, it forces community healthcare providers like Planned Parenthood out of the program, taking away access to reproductive healthcare, like birth control and life-saving cancer screenings,” Alexis McGill Johnson, president and chief executive officer of Planned Parenthood Federation of America, said in a Feb. 23 statement on the Supreme Court’s action. “The gag rule’s harm is felt most by those who have always faced systemic barriers to healthcare, including people in rural areas, and Black, Latino, and indigenous communities. We are proud to join with our partners in taking this fight to the highest court; however, patients need access now and can’t wait for a Supreme Court decision.”

The Trump administration’s changes to Title X jeopardize women’s reproductive health. “Each day these federal regulations are in place, the federal government is dictating a lower standard of care for women across America, disproportionately impacting rural regions and communities of color,” Rabinovitz says.

“We’re thankful the Biden-Harris administration already initiated a review of the Trump administration’s harmful changes to the Title X program and look forward to working with them to quickly create a pathway to program re-entry for healthcare providers who have been forced out,” Johnson said. “We need to modernize and expand Title X to ensure that the delivery of sexual and reproductive healthcare meets the needs of all people.”

REFERENCES

  1. State of California, by and through Attorney General Xavier Becerra, v. Alex M. Azar II, in his Official Capacity as Secretary of the U.S. Department of Health & Human Services; U.S. Department of Health & Human Services. United States Court of Appeals for the Ninth Circuit. Feb. 24, 2020. https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/24/19-15974.pdf
  2. American Civil Liberties Union. Supreme Court to hear arguments challenging Trump-era Title X rule. Feb. 22, 2021. https://www.aclu.org/press-releases/supreme-court-hear-arguments-challenging-trump-era-title-x-rule
  3. Congressional Research Service. Title X Family Planning Program. Updated Oct. 28, 2020. https://crsreports.congress.gov/product/pdf/IF/IF10051