Trump administration begins enforcing abortion ‘gag rule’

Health and Human Services Department

A provision of the rule requiring clinics that provide abortions to create complete financial and physical separation between their abortion providers and other services won’t take effect until 2020. | Alex Wong/Getty Images

The Trump administration’s decision to immediately bar family planning funds to groups, like Planned Parenthood, that perform or refer women for abortion could force some states and organizations to abandon the federal program that pays for contraception for low-income women.

The administration said it will move forward with its new family planning overhaul, which critics deride as an abortion “gag rule,” as it faces ongoing legal challenges from nearly two dozen states and organizations, including Planned Parenthood, the largest single recipient of funding in the program, known as Title X. States and groups opposing the new rules say the policy creates serious gaps in access for the roughly 4 million women who depend on the $250 million-plus program for birth control, cancer screenings and other health services.

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Faith-based groups that oppose abortion and hormonal birth control are also now eligible for funding under the rules. Earlier this year, the religiously affiliated clinic network Obria was awarded a three-year, $5.1 million grant in California. Although the group will only offer “natural” family planning counseling such as abstinence and the rhythm method, it still must subcontract with clinics that provide other forms of contraception.

Maine Family Planning, a nonprofit entity and the sole recipient of Title X funds in the state, on Tuesday said it would withdraw from the program because of the new rules. Democratic Gov. Janet Mills pledged to work with health centers to help them remain open.

Planned Parenthood, which serves more than 40 percent of the nation’s Title X patients, confirmed Monday night it won’t comply with the new rules. The group said Its clinics will start using their own emergency funds while it continues to fight the administration in court.

Planned Parenthood, which still gets significant funding from Medicaid, has long been the only Title X funding recipient in Utah, and it covers a large portion of the population in several other states. Its exit from the program could leave parts of the country without a federally funded family planning provider.

Meanwhile, Planned Parenthood was plunged into fresh turmoil on Tuesday, when the board voted to force out president Leana Wen after less than a year in the job. In a statement, Wen cited “philosophical differences” with board members about the organization’s direction.

The Trump Title X rules have been in legal limbo since they were finalized in February. Multiple federal judges blocked them from taking effect nationwide, but a three-judge panel of the U.S. 9th Circuit Court of Appeals in California last month lifted the freeze. The entire appellate court, which will re-hear the case, denied a request from blue states and health organizations to reinstate the freeze while the legal challenge plays out.

The Supreme Court may eventually have the final say on the rules. Nearly 30 years ago, the high court upheld a similar Reagan-era policy, but it was reversed by the Clinton administration before it took effect.

For months, family planning clinics and states have faced uncertainty about when and whether they would have to comply with the new rules. Diane Foley, the HHS official overseeing the Title X program, on Monday told organizations receiving program funds that the administration will move forward with the rules because of the 9th Circuit’s latest decision. Clinics that remain in the program have until 2020 to comply with another provision of the new rule requiring organizations to have strict financial and physical separation between their abortion providers and other services.

“We are aware that many of you have been frustrated with the lack of guidance given to you,” Foley told recipients of Title X funding in an email obtained by POLITICO on Monday night. A department spokesperson said HHS will provide those organizations with more guidance on the rules during a three-day meeting in Washington this week.

The Office of Population Affairs, which oversees Title X, “is committed to working with grantees to assist them in coming into compliance,” the HHS spokesperson said.

Anti-abortion groups who’ve long lobbied for cutting Planned Parenthood’s funding cheered the administration’s decision to enforce the rule, predicting that federal courts will side with Trump in the end.

“We are confident that the Trump administration will ultimately prevail and grateful that, in the meantime, the Protect Life Rule can immediately begin saving lives,” said Marjorie Dannenfelser, president of the Susan B. Anthony List.

Clinics will now be barred from referring patients to an abortion provider but required to refer them for prenatal care, regardless of a patient’s wishes. Clinics have always been banned from using Title X money for abortions, but the Trump administration argued greater separation was needed to prevent the intermingling of funds.

Now, numerous state health agencies administering Title X funds, including some that are their state’s lone recipient of program dollars, must decide whether to go forward with previous suggestions that they’d withdraw from Title X if the Trump rules took effect. Millions of dollars are on the line.

Oregon, which is leading a 21-state lawsuit against the rule, is consulting with state attorneys, a spokesperson for the state’s health department said. Washington state, which is also challenging the rules in court, said Tuesday that it is reviewing options.

“It’s safe to say that Washington state won’t come into compliance with the rules,” Casey Katims, spokesperson for Gov. Jay Inslee, a Democratic presidential candidate.

Maryland and Massachusetts, which are both challenging the rules in court, passed laws this year creating state reserve funds for clinics set to lose money under the new Trump administration rules. Both are traditionally blue states with moderate Republican governors.

But some states challenging the rules in court plan to remain in Title X. Delaware, Michigan, Rhode Island and Virginia will stay, state officials confirmed to POLITICO this week. Two other states, Nevada and North Carolina, last month said they expected to remain in the program after the 9th Circuit lifted the injunction on the Trump rules. However, individual providers they contract with could still leave the program’s provider network over disagreement with the rules.

The National Family Planning and Reproductive Health Association, which represents many Title X-funded organizations across the country, blasted the administration’s abrupt decision to begin enforcing the rule without warning.

“It comes without any guidance or due diligence informing providers what steps would constitute compliance with the requirements in this sweeping new regulation,” said Clare Coleman, the group’s president. “Once again, the administration’s actions show its intent is to further an ideological agenda, not protect and improve health care for those in need.”