Update: Multiple lawsuits have been filed to challenge the Trump Administration's so-called "gag rule."
The rule, released in late February, changes how funds of the federal family planning program, Title X, are distributed. It effectively blocks Planned Parenthood and other clinics that provide or refer for abortion from participating.
The first suit was filed by Planned Parenthood and the American Medical Association in Oregon. It argues that the Trump Administration's rule change would "radically" alter the program requirements and politicize the delivery of healthcare to the detriment of patients.
“The Trump-Pence administration’s gag rule is unethical, illegal, and harmful to public health, which is why Planned Parenthood is joining together with the American Medical Association to sue to protect patients’ rights and access to health care," Leana Wen, MD, president of Planned Parenthood said in statement emailed to Refinery29. "Families that are struggling to make ends meet and people who live in rural areas must have the same access to full, unbiased information from their doctor as everyone else."
The second was filed in Maine by the Center for Reproductive Rights on behalf of Maine Family Planning, the state's largest reproductive health provider and largest Title X grantee in the state as well.
“The Trump administration’s ‘Global Gag Rule’ has had a disastrous effect on women around the world,” said Nancy Northup, President and CEO of the Center for Reproductive Rights in a statement. “Now, the administration is coming after health care providers in the U.S. to destroy the provision of comprehensive, medically accurate reproductive health care. We’ve filed suit today to stop that from happening.”
To learn more about the rule change and how it might affect women across the country, keep reading below for our original story from February 22, 2019.
On Friday, the Trump Administration's Office of Population Affairs published the final text of proposed changes that will effectively block Planned Parenthood and other clinics that provide or even mention abortions from receiving a type of federal funds.
The new document, which is 312 pages long, outlines a series of rule changes related to how the federal government distributes money allocated for the family planning grant program known as Title X. This program, which was created in 1970 with bipartisan support, provided $286.5 million in 2018 to pay for free or low-cost birth control, as well as other preventive care like STI screenings, for low-income women. Each year, Title X serves 4 million women through healthcare providers who receive grants from the government to provide services. (This would not affect reimbursement by Medicaid, a separate program.)
The major changes include a new requirement that all participating Title X providers "maintain physical and financial separation from locations which provide abortion as a method of family planning." This means that any clinic or doctor's office that also offers abortions is no longer allowed to receive federal grants that would help provide free or low-cost birth control for low-income women.
Although a spokesperson from the Health and Human Services Department, which oversees Title X, told Refinery29 via email that the Trump administration"seeks to serve more women and men than previously served in the Title X program," advocates say the new changes will do precisely the opposite.
Reproductive rights advocates say this is a direct attack on Planned Parenthood, which via the organization's nationwide network of family planning clinics, is currently the largest provider of Title X-funded birth control services. Roughly 41% of patients receiving birth control funded by Title X get those prescriptions at a Planned Parenthood clinic.
In a conference call with the leaders of major medical organizations and reporters this afternoon, Leana Wen, MD, president of Planned Parenthood Federation of America, described the new rules as "unconscionable" and "unworkable," and vowed to use "every avenue to make sure this rule never goes into effect.”
As Refinery29 previously reported, there is major concern that the rule changes will result in women losing access to much-needed birth control and other preventive health services, such as cancer and STI screenings. According to one Guttmacher Institute analysis, other reproductive health clinics would have to increase their patient caseloads by 70% if Planned Parenthood was excluded from the Title X program. "Community health centers have said already they are unable to fill this gap," said Niva Lubin-Johnson, MD, president of the National Medical Association, an organization representing African-American physicians, on the call.
The new rules also include strict guidelines around what participating providers can and cannot say about pregnancy and abortion. In short, participating providers will no longer be required to offer both pregnancy or abortion counseling, as they were before. Now they are only permitted to offer "nondirective pregnancy counseling" and crucially, they are prohibited from even referring women to abortion providers.
Reproductive health experts have referred to this change as a "gag rule" because it limits what providers can and cannot say to patients. Major medical associations including the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association have opposed the rule on the grounds that it violates medical ethics to keep information from patients.
Dr. Lubin-Johnson added that the loss of available services as well as the gag rule would hit Black women particularly hard. "Withholding information from patients is a radical departure from how healthcare has been administered in this country and a clear violation of medical ethics,” she said, adding that this would only serve to deepen mistrust between communities of color and the healthcare system.
"This will have dire and disproportionate consequences for hispanics and the underserved," added Judith Flores, MD, chair of the board of directors at the National Hispanic Medical Association. "As physicians we cannot silently standby and allow the Trump Administration to increase healthcare disparities."
In addition, the new rules include changes to the reporting requirements for how the funds will be used, and for services rendered to sexual abuse victims. They also require providers to encourage family involvement in birth control decisions, especially for minors, which Planned Parenthood and ACOG representatives noted is a red flag. "Providers should be able to use their discretion on whether the family should be allowed to weigh in or not," said Lisa M. Hollier, MD, president of the American College of Obstetricians and Gynecologists.
Federal law already prohibits federal funding from paying for abortion services. "The Department believes that there should be a visible separation between the Title X program and activities involving abortion as a method of family planning," a spokesperson from the U.S. department of Health and Human Services, which oversees Title X, said in an email to Refinery29.
The new rules are not yet official. They still need to be published in the Federal Register and get through the 60-day waiting period to go into effect. Reproductive rights advocates fully expect lawsuits challenging the rule to be filed before that happens.
"Title X is our nation’s gold-standard family planning program that serves low-income patients for free. Now the Trump administration wants to prevent Title X patients from receiving full information about their care options and drive many of the most experienced health care providers from the program," said Ruth Harlow, ACLU Reproductive Freedom Project Senior Staff Attorney, in a statement emailed to Refinery29. "Nobody should be denied access to reproductive health care or receive inadequate care because of their lack of income." The ACLU confirmed that they are currently reviewing the legal options and are committed to fighting back.
Planned Parenthood's Deputy Director of Public Policy Litigation and Law Carrie Flaxman said that the organization is still reviewing the legal options, but is committed to fighting it.
A similar rule was proposed in 1988 by the Reagan Administration. It was immediately challenged in the courts, with the case ultimately making it all the way to the Supreme Court, which ruled in favor of the Reagan Administration. However, the rule never went into effect because by the time of the decision, President Bill Clinton had assumed office and changed the policies anyway.
In the meantime, Dr. Wen had this message for Planned Parenthood's patients: "Our doors are open, and we will be here to serve all those who need us.”