Thursday evening the Trump administration announced a measure that pro-life advocates have been seeking since the Clinton administration — restoration of Reagan-era rules that “require a ‘bright line’ of physical and financial separation between Title X services and providers that perform, support, or refer to abortion as a method of family planning.” To understand Title X, and its role in the abortion debate, requires a bit of background.
Planned Parenthood — America’s largest abortion provider — receives more than $450 million annually in federal funding, a significant portion of its annual revenue. Most of that money (roughly 85 percent) comes through Medicaid disbursements. The Trump administration cannot strip those funds from Planned Parenthood without passing legislation — and that legislation would certainly be filibustered by Democrats.
The rest of the federal money comes through Title X of the Public Health Service Act, a federal program that funds “family planning” services and authorizes the Department of Health and Human Services (HHS) to “make grants to and enter into contracts with public or non-profit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services.” At the same time, however, the enabling statute is crystal clear that “none of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.”
In other words, the goal was to support “preventative family planning services” — contraception, for example — and abortion services are not “preventative.” While the purpose of the statute has long been clear, Democratic presidents have resisted proper enforcement and have allowed abortion-providing organizations such as Planned Parenthood ready access to Title X funds with minimal (and minimally effective) restrictions. In 1988, however, the Reagan administration provided the proper model for enforcement by promulgating regulations that attached three main conditions to the receipt of Title X funds.
First, a Title X project could not “provide counseling concerning the use of abortion as a method of family-planning or provide referral for abortion as a method of family planning.” Second, a project could not “encourage, promote or advocate abortion as a method of family planning.” (The first two restrictions were known, collectively, as the “gag rule.”) Finally, a project had to be “physically and financially separate” from facilities that provide abortions. “Mere bookkeeping separation” was not sufficient.
A coalition of Title X grantees and doctors challenged the Reagan rules in court, and in 1991 the Supreme Court upheld the regulations in their entirety. Unfortunately, however, the Clinton administration promptly repealed the regulations, and they have not been reinstated since.
The Trump administration’s announced rule represents in effect a partial reinstatement of the Reagan-era restrictions and a move towards compliance with statute. Trump’s rules do not prohibit Title X projects from offering abortion counseling. In other words, they don’t reinstate the “gag rule,” but they do require physical and financial separation of Title X and abortion services — a requirement that many Planned Parenthood facilities simply can’t (or don’t want to) meet.
While the new regulations ideally would have included Reagan’s restrictions on abortion counseling, the Trump administration has made a positive and necessary step not just towards the unambiguously pro-life goal of defunding the nation’s largest abortion provider but also towards carrying out the intent of Congress when it passed Title X. As Chief Justice Rehnquist noted in the majority opinion in Rust v. Sullivan — the case upholding Reagan’s regulations — “If one thing is clear from the legislative history, it is that Congress intended that Title X funds be kept separate and distinct from abortion-related activities.” Requiring a bright line of physical and financial separation accomplishes this intent.
If Planned Parenthood is unwilling or unable to comply with Trump’s regulations, women have ample alternative options to receive birth control or preventative care. In fact, as the administration argued in its own informational materials, “non-abortion centers” outnumber Planned Parenthood abortion centers “by more than 20 to 1 nationwide.”
Notwithstanding the Supreme Court’s ruling in Rust and the more limited reach of Trump’s policy, expect Trump’s regulations to be immediately challenged in federal court. Abortion-rights activists will almost certainly file suit in a favorable jurisdiction and hope to secure preliminary injunctions with the goal of running out the regulatory clock — of delaying the regulations until a Democrat can take back the White House. As multiple court rulings have already demonstrated, progressive federal judges have shown no hesitation to defy controlling precedent and join the judicial branch of the #Resistance.
Thus, it’s a simple fact that the administration’s announcement yesterday is but the first step in a long journey — the beginning of yet another regulatory, legal, and political fight where the outcome is far from certain. But Republicans must not shy away from this battle, and the Trump administration is right to more effectively enforce the will of Congress. We applaud this decision.