Don’t call it a “gag rule.” Call it a win for the rule of law.
A new federal regulation cutting off federal contraception funding to organizations that perform abortions is going into effect at midnight Monday, and Planned Parenthood is turning down $60 million rather than comply with the rule (the “family planning” funds will be redirected to organizations that don’t perform abortions).
Planned Parenthood calls the regulation a “gag rule” because one of its provisions prohibits grantees from making referrals for abortion, and many of Planned Parenthood’s allies in the media are parroting the “gag rule” talking point. See, for example, the headline in the Los Angeles Times news pages: “Planned Parenthood to stop taking Title X funds rather than comply with abortion ‘gag rule.’”
“Planned Parenthood said Monday it will withdraw from the federal Title X program that helps low-income people access contraception rather than comply with what it calls a new Trump administration ‘gag rule’ that prohibits it from providing abortion referrals to those patients,” the newspaper reports in paragraph one.
Twelve paragraphs down in the story, the reader learns that the “policy does not prevent healthcare providers from mentioning abortion, but it prevents them from making a referral or telling patients where they could get one. Planned Parenthood and the American Medical Assn., which is also suing the administration over the policy, call it a ‘gag rule’ because it interferes in a doctor’s relationship with the patient and his or her ability to provide the care they think is best.”
In fact, the regulation not only allows doctors to “mention” abortion, it allows “nondirective counseling on abortion” — that is, counseling that doesn’t push a pregnant woman toward an abortion. “To preserve open communication between the client and the provider, the regulation permits, but does not require, nondirective pregnancy counseling, including nondirective counseling on abortion,” Diane Foley, deputy assistant secretary at the Department of Health and Human Services, said in congressional testimony.
Is Planned Parenthood really giving up $60 million in federal funding simply because it would have to tell clients to Google the phone number of nearest abortionist, who is often operating down the hall? What’s much more likely is that Planned Parenthood would never comply with the regulation because it also requires physical separation between abortion facilities and grantees that provide contraception under Title X.
The provision at the heart of the regulation requiring Title X programs to separate, physically and financially, from programs where abortion is performed as a method of family planning is merely enforcing the plain meaning of the 1970 law that established Title X. That law states: “None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.”
But many media organizations are portraying this requirement of separate facilities as unusual. As Politico puts it: “Going beyond longstanding restrictions on using federal money for abortions, the rule also cuts off family planning dollars to clinics that use their own money to provide abortions.” Nowhere does Politico inform readers that the law establishing Title X states: “None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.”
It is true that this provision of the law was not enforced in the 1970s and 1980s. By the time it was enforced (following the efforts of the Reagan and George H. W. Bush administrations), Bill Clinton was elected. He allowed Title X programs to go back to blurring the line between providing contraception on one hand and performing and referring for abortions on the other. In his own regulation, Clinton gave his formal blessing to Title X programs’ sharing staff and facilities with abortion clinics, despite the plain meaning of the words: “None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.”
In short, the “gag rule” isn’t really a “gag rule.” Planned Parenthood is free under the regulation to provide abortion counseling, but it doesn’t want to separate its contraception business from its abortion business, as required by the statute establishing Title X. The new regulation is not simply a meaningful step in the right direction for the pro-life cause, it’s a win for the rule of law.