Repro Roundup: SCOTUS to review three petitions about Title X gag, which prevent family planning clinics from receiving funding if they refer patients to abortion
By: Steph Black
Tags: Supreme Court, Family Planning, Abortion, Title X, Repro Roundup

Repro Roundup: SCOTUS to review three petitions about Title X gag, which prevent family planning clinics from receiving funding if they refer patients to abortion Steph Black Nov 9, 2020·4 min read

Welcome to my column, The Repro Roundup, in which I summarize abortion news happening around the country, why it matters, and what you can do about it — in 250 words or less.

What’s the issue? This week the Supreme Court will review three separate petitions over the Trump administration's rule that any family planning clinic cannot receive any Title X funding if that clinic refers patients to abortion care. This is known as the Domestic Gag Rule. Reminder, no family planning clinic of any kind can use federal dollars, like those from Title X funding, to be used for abortion care to begin with. Specifically, no Title X funds “shall be used in programs where abortion is a method of family planning.”

The three separate petitions are:

Whether the Department of Health and Human Services’ rule for the Title X family planning program — which prohibits and compels certain pregnancy-related speech between a Title X provider and her patient, proscribing abortion-related information but requiring information about non-abortion options — is arbitrary and capricious; (2) whether the rule violates the Title X appropriations act, which requires that “all pregnancy counseling” under Title X “shall be nondirective”; and (3) whether the rule violates Section 1554 of the Affordable Care Act, which requires that HHS “shall not promulgate any regulation” that harms patient care in any one of six ways, including by “interfer[ing] with communications” between a patient and her provider.

2. Azar v. Mayor and City Council of Baltimore

Whether the Department of Health and Human Services’ rule, which prohibits Title X projects from providing referrals for abortion as a method of family planning, falls within the agency’s statutory authority; and (2) whether the rule is the product of reasoned decisionmaking.

3. Oregon v. Azar

Whether the Department of Health and Human Services’ final rule — which prohibits Title X providers from communicating certain abortion-related information to their patients and requires physical separation of Title X-funded care from healthcare facilities that provide abortion services or certain abortion-related information — violates appropriations statutes requiring that “all pregnancy counseling” in the Title X program “shall be nondirective”; (2) whether the final rule violates Section 1554 of the Affordable Care Act, which prohibits HHS from promulgating “any regulation” that creates “unreasonable barriers” to obtaining appropriate medical care, impedes “timely access” to such care, interferes with patient-provider communications “regarding a full range of treatment options,” restricts providers from disclosing “all relevant information to patients making health care decisions,” or violates providers’ ethical standards; and (3) whether the final rule is arbitrary and capricious, in violation of the Administrative Procedure Act, including by failing to respond adequately to concerns that (a) the rule requires medical professionals to violate medical ethics and (b) the counseling restrictions and physical-separation requirement impose significant costs and impair access to care.

Why does this matter? Every person has the right to know their pregnancy options, whether it be parenting, adoption, or abortion. All three of these options are legitimate outcomes. By hinging funding for family planning clinics on their silence around abortion, the Trump administration has literally gagged them. These clinics have a choice to either provide incomplete care or lose millions in grant funding. When faced with this option in the summer of 2019, 33 states decided to withdraw from Title X funding, choosing instead to use their own budgets to continue to provide holistic care to patients. As such, the impact of the network of clinics in Title X was slashed in half, leaving minority and low-income women stranded.

What action can I take?