Enforcing Title X

“The Office of Population Affairs (OPA) , in the Office of the Assistant Secretary for Health, issues this final rule to revise the regulations that govern the Title X family planning program…to ensure compliance with, and enhance implementation of, the statutory requirement that none of the funds appropriated for Title X may be used  in programs were abortion is a method of family planning and related statutory requirements.”

Twenty-two states have filed suit against the Trump administration which is reminding TITLE X recipients of the original language which prohibits abortion as a method of family planning.  The Washington Post refers to the Trump Administration’s clarification of rule on March 3, 2019 as a “new…misguided rule.” In fact, the rules were set in place in 1970 during the inception of Title X by Nixon stating any clinic receiving Title X funds would have to adopt the federal guidelines to remain eligible and to continue to receive funding.

These lawsuits, while using the momentum of a Trump-fed divided political atmosphere, are less about Trump over-stepping his executive boundaries and much more about the continued debate of abortion as a federally defined healthcare initiative. The response to the rule being enforced gives a clear indication of the lack of adherence to the rule of the clinics across the nation. The original language of Title X Section 1008 always stipulated that the funds would not be used for abortion related family planning. In the next four decades, interpretation of Section 1008 has gone back and forth. In the interim, providers like Planned Parenthood, have accepted the grant money while always pushing the line that is established in Section 1008. The Trump Administration is reinforcing that line with clear interpretation including requiring Title X recipients, even if they are abortion providers, to have a clear distinction between the offerings receiving Title X funds. This boundary dispute is as contested as the one on the southern border.

What is Title X ?

In 1970 Richard Nixon passed Public Law 91-572, creating the Office of Population Affairs. This law was sponsored by New York Democrat James Scheuer and Texas Republican George HW Bush passing through the house with a wide majority and bipartisan support. The act was meant to make comprehensive family planning services available to low income and under-insured families, while coordinating research with family planning services.  The gain for the federal government: to improve the administration and operation of domestic family planning services and population research programs. OPA was given the authority to issue grants and form contracts with public and non-profit organizations, bringing comprehensive voluntary planning services to low-income and under-insured families.

OPA became a part of the Department of Health, Education and Welfare. It is the Secretary of HEW who has the ability to enter into contracts with the public and non-profit entities by granting funds for family planning, distribution of educational materials and for training and research. The Federal Government has regulated all clinics receiving title X funds, requiring all recipients to follow uniform regulations and guidelines that guarantee women access to contraceptive counseling, a range of contraception options, confidentiality, as well as referral to other health and social services.

Section 1008

“Each project supported under this part must…Not provide abortion as a method of family planning. A project must:

• Offer pregnant women the opportunity to be provided information and counseling regarding each of the following options:
• Prenatal care and delivery;
• Infant care, foster care, or adoption; and
• If requested to provide such information and counseling, provide neutral, factual information and nondirective counseling on each of the options, and referral upon request, except with respect to any option(s) about which the pregnant woman indicates she does not wish to receive such information and counseling….” (42CFR59.5)

Title X Section 1008 precluded funds being distributed to entities which defined abortion as a means of family planning.  In the regulations of qualification for Federal funding this has always been clear. In 1988, an addendum was added stating that Title X monies would not be granted to entities where abortion options, counseling or printed materials, were issued. Opponents of this 1988 deemed this a “Gag Order.” Opposition argues the inability to provide information on abortion does not allow for comprehensive family planning information. Proponents state the counseling of abortion will inevitably lead to abortion, therefore making the counseling a prohibition per Section 1008.  The argument of 1988 and 2019 lies in the language found in interpretation of  116 Cong. Rec. 37375 (1970):

“We believe that counseling or referrals concerning abortions are clearly actions that promote abortion. The purpose of counseling programs for pregnant women is to provide information upon which a course of action may be based…the intended and actual effect of the counseling and referral is to provide the option of an abortion with the natural expectation that some women will select that method of family planning…” (1988)

“The department believes both the referral for abortion as a method of family planning, and such abortion procedure itself, are so linked that such a referral makes the TiTLE X project or clinic a program one where abortion is a method of planning contrary to the prohibition against the use of TITLE X funds in such programs.” (2019)

In 1993, Clinton removed the language which disallowed Title X facilities to pass out literature and give nondirective counsel, including abortion. This formal repeal of what came to be known as the “gag rule”, came by Congressional vote, even after the Supreme Court ruled in Rust v. Sullivan (1991) that it was within Executive Power to uphold the rule.  In 2000, and again in 2012, Title X became part of the budget debate. The interpretation of Title X, Section 1008 has been a continual revolution: a new president, a new empowered party, a new interpretation.

Separation:

“This rule will require Title X providers to maintain physical and financial separation from locations which provide abortion as a method of family planning… The final rule thus requires physical and financial separation to protect the statutory integrity of the Title X program, to eliminate the risk of co-mingling or misuse of Title X funds, and to prevent the dilution of Title X resources.” 

Providers who perform abortions, such as Planned Parenthood, are legally contesting the new interpretation of an old rule. Claiming the Trump administration is politicizing healthcare, providers like Planned Parenthood have been pushing their own political agenda, defining abortion as healthcare and a means of family planning. This alone disqualifies them as a Title X recipient, but the ambiguous line of where the Title X funding and the abortion funding were separated has been an intentional push for the federal government to include abortion as a healthcare option. The physical separation of these two makes it clear that in this administration that push is being countered. Abortion is a legal option for family planning. It is just not one the public money of the United States is going to be pay for.

The Title X money no longer available to providers who are not in compliance, will be distributed to providers who are, most likely, to the local, county and state Health Department clinics who are providing comprehensive health care to all without abortion services in the catalog.  These compliant recipients are already receiving 60% of the funding from Title X. Planned Parenthood is receiving 25 % of the funds. That extra funding could go a long way to improve the clinics who are already in the areas most needed.

Title X has been clear since its inception as to the intent and restrictions of the funds made available. In the forty-nine years since, the political cycle has allowed abortion to be the central political focus of a program that has been a provisional tool to under served populations. The final word, the federal government has not and should not be funding, not given to appearance of funding abortion as a healthcare option.  Obama stated as he was leaving office, Title X funds should not be a pawn in the abortion wars. I stand in full agreement. I think having full separation of abortion services and Title X services is a clear way be sure Title X stands, as intended, regardless of the political storms surrounding the abortion debate.