There has been a lot of news recently about the finalized Title X rules. Maybe you have seen the rules hailed as finally being the regulations which will defund Planned Parenthood of millions of dollars of Federal (and therefore, taxpayer) money. Or perhaps you have seen the rules characterized as:
- an attack on healthcare and reproductive rights, especially for women
- a “gag rule” meant to make it illegal for providers to talk about abortion
- a political attack against Planned Parenthood and legal abortion by conservative, right-wing men who want to control women’s bodies
Sensational headlines will continue, since multiple states are filing lawsuits against the rules. So what is the truth?
Nine months ago, I read the original proposed rules and provided a quick breakdown of some important changes. Here, I will provide more information directly from the actual text of the rules — something I have not found in ANY news story I have read pertaining to the finalized rules — and what changes will be made. My goal is to present the truth, and not respond to every single news outlets’ claims.
The entire 312-page text includes the final rules to be submitted to the Federal Register (pgs. 291-312), the purpose of the rules (pgs. 6-7), a background discussing the history of Title X rules (pgs 23-30), a thorough addressing of the public comments (both positive and negative) on the proposed rules (pgs. 30-245), and an analysis of the costs and benefits of implementing the rules (pgs 245-290).
To begin, let’s clarify a few possible misconceptions:
Was Title X ever supposed to fund abortion?
First, Title X grants are the only discrete, domestic Federal funds focused exclusively on the provision of cost-effective and family planning methods and services. Paying for the performance of, reference for, or encouraging of abortion as a method of family planning has never been allowed under Title X money.
The intent of the funds is “to assist in the establishment and operation of voluntary family planning projects. These projects shall consist of the educational, comprehensive medical, and social services necessary to aid individuals to determine freely the number and spacing of their children (§ 59.1(a), pg. 291).”
This statement is the same in the new rules and the rules established in 2000. So access to legal abortion services should not have ever been affected by, should not currently be affected by, and should never in the future be affected in any way by Title X funding or non-funding.
Can Title X funds still be used to fund abortion anyways?
This brings us to the second misconception, which is Title X money has never been used to fund abortion, just because it is not supposed to. Fungibility (fungible money means money which is used for one thing can free up other money to be used toward another thing) of money is a rarely recognized fact. However, under the 2000 version of Title X, the only requirement to enforce the restriction of funds is that the project receiving the Title X fund must “Not provide abortion as a method of family planning.” (§ 59.5 (a)(5)).
Although Title X funds should never fund abortion as a method of family planning, a lack of adequate guidelines has allowed free exchange of these Federal funds with abortion providers’ other funds, and subsequently, has allowed for indirect funding of elective abortions.
For example, a service site may provide contraception, STD testing, and abortions all in the same facility, as well as give sex-ed presentations and build community awareness of resources. The service site may get Title X funding and other funds to operate. Since the Title X-prohibited services happened in the same facility as the Title X project, any Title X funds which went to pay for infrastructure of the facility (rent, utilities, salaries, equipment, supplies, etc.) would free up other funding to be used for providing, promoting, or encouraging abortion. Under the 2000 edition of the Title X rules, no degree of physical or financial separation of Title X funds and project services from Title-X prohibited activities were outlined, so the Title X funds were easily interchangeable.
What’s all the controversy about?
The new rules accomplish several main goals which are the cause for celebration or outrage: clear physical and financial separation of Title X project funds from prohibited activities (pg 7); non-directive pregnancy counseling permitted, not required (pg 10); and referrals for abortion as a method of family planning prohibited, not required (pg 13). Several other goals and changes to the rules have been made which have not sparked as much controversy.
In order to “best promote the purposes of statutory provisions applicable to the Title X program, and ensure that no Title X funds are used where abortion is a method of family planning (§ 59.7(a), pg 298),” rules enforcing separation of Title X project funds from other projects were written.
The first requirement listed in the rules is very similar to the existing rules from 2000 and states to receive Title X funding, the grantee must provide “assurance satisfactory to the Secretary that the project does not provide abortion and does not include abortion as a method of family planning (§ 59.13, pg. 300).”
Part of making sure the grantees are not using funds to directly or indirectly provide abortion is changing the way a project is meeting standards internally.
Removing abortion referral mandate
These new requirements are outlined in § 59.14. Subsection (a) states, “A Title X project may not perform, promote, refer for, or support abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion (pg. 301).” Subsection (b) goes on to state if a client is confirmed as pregnant, she “shall be referred to a health care provider for medically necessary prenatal health care” and the provider of the Title X services may also choose to provide specific counseling and information services to the client, such as “Nondirective pregnancy counseling, when provided by physicians or advanced practice providers” and/or “A list of licensed, qualified, comprehensive primary health care providers (including providers of prenatal care),” among other options.
This removes the mandate of the 2000 rules to provide an abortion referral if a client asked for it, since this mandate was determined to break conscientious objection laws and go against the express purpose of Title X grants (§ 59.5(5)(i)-(ii)).
Subsection (c) then outlines how referral lists cannot be used to promote or refer for abortion. The providers on the list must provide comprehensive services and “may include licensed, qualified, comprehensive primary health care providers…some, but not the majority, of which also provide abortion as part of their comprehensive health care services (pg 302).” However, “Neither the list nor project staff may identify which providers on the list perform abortion.” The client would have to determine that on their own.
Finally, subsection (e) of § 59.14 gives several examples of how to comply with the rules.
§ 59.16 outlines other activities which promote or advocate for abortion and are therefore prohibited, such as lobbying for legislation which would increase access to elective abortion, providing speakers or educators who would talk about abortion as a method of family planning, attending events where the grantee engages in lobbying for elective abortion access, paying dues to groups which advocate for increased access to elective abortion, taking legal action which would increase access to elective abortion, and developing and/or spreading material which refers to abortion as a method of family planning (pg. 306-307).
Removing possibility of fungibility of Title X money
The second method of ensuring grantees are not using funds in a prohibited manner is to eliminate the possibility of interchangeability of the Title X project funds with projects delivering prohibited services via both physical and financial separation of the Title X project funds, which is outlined in § 59.15.
“A Title X project must be organized so that it is physically and financially separate, as determined in accordance with the review established in this section, from activities which are prohibited…Mere bookkeeping separation of Title X funds from other monies is not sufficient (pg 305).”
Why the need for physical and financial separation beyond bookkeeping records? Because it has been expressed several times by publications from Guttmacher that Title X funds go toward paying for infrastructure of facilities. If these facilities also provide elective abortions, then Title X money is being used to indirectly finance access to abortion as a method of family planning, which is in direct violation of Title X project fund rules.
Factors which will be considered in determining if a Title X project provider is separating Title X activities and funds from prohibited ones are
“(a) existence of separate, accurate accounting records; (b) The degree of separation from facilities (e.g., treatment, consultation, examination and waiting rooms, office entrances and exits, shared phone numbers, email addresses, educational services, and websites) in which prohibited activities occur and the extent of such prohibited activities; (c) The existence of separate personnel, electronic or paper-based health care records, and workstations; and (d) The extent to which signs and other forms of identification of the Title X project are present, and signs and material referencing or promoting abortion are absent (pg 305-306).”
Abortion providers could still use a loophole to refer for abortion
It is important to note the rules only apply to prohibition of providing, promoting, or referring for abortion as a method of family planning. If a Title X healthcare provider determined a client had a medical need for an abortion, none of these rules would apply.
In fact, the common example of an ectopic pregnancy is covered in § 59.14(e)(2) (pg 302). Since Doe v. Bolton, the companion case to Roe v. Wade, has already ruled that
“the medical judgment may be exercised in the light of all factors –physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.”
It is unlikely this rule would prohibit any doctor or advanced practice provider who perform abortions from making many abortion referrals under a Title X project, as long as they can come up with a “medical” reason falling under one of the broad categories outlines by Doe.
What the rules do NOT do
This rule is not a gag rule. It does not force doctors to be silent about a client’s family planning and contraception options or to withhold information deemed medically necessary for the client. It does not force doctors to lie to their patients. Doctors can still talk about abortion and answer questions about abortion when giving non-directive pregnancy counseling, if they so choose.
This rule will not force organizations or providers who provide elective abortions to stop providing them; it will merely require the separation of abortion services and other prohibited services from being financed by Title X money. As the HHS points out in addressing the comments in the bulk of the report, this may mean some providers rent an additional location, move locations, build a new location, stop providing abortions, or in some other way come into compliance with the rules.
The new rules also take no money away from existing Title X funds.
These rules should not negatively affect patients. In the bulk of the document addressing the comments, HHS points out the rules (one discussed here and the rest of the rules) make it so actually more providers can and would be willing to apply for funding. The breadth of family planning services outlined in the 2000 rules and earlier rules must still be made available to patients by the grantee (§ 59.5(a)(1) and 59.7(c)(1), pg. 296, 298).
Essentially, the rules ensure more competition among grantees, the possibility of more providers, and guarantee of same or broadened family planning services available. In fact, one new rule makes it easier for women to get contraceptive services if her employer-based insurance plan does not cover the cost (§ 59.2(b), pg. 294-295).
How will this effect abortion providers?
It is interesting to note, as well, many of the media sources saying the new Title X rules are gag rules and will shut down healthcare providers across the country also say Title X funds never went toward abortion — their point being we do not even need the new rules. If this were true, then coming into compliance would not cost abortion providers who also get Title X funds anything more in time, effort, or money to keep their funding sources and services separate. The new rules would not affect them at all if Title X funding truly were being kept separate from abortion services. However, if Title X funding is being used in a deceptively interchangeable manner to free up other money to cover abortion services, then yes, these rules will rightly require the provider to come into compliance.
In reality, only grantees or subrecipients who provide abortion services would be at all affected by the financial and physical separation requirement, but not all Title X grantees and subrecipients provide abortions. One could go through the entire Title X Family Planning Directory, and see how many grantees and/or subrecipients offer abortion at the same sites as Title X services. HHS, however, estimates between 10-30% of service sites may not comply with the new rules regarding physical and financial separation (pg. 270).
Grantees already receiving Title X funds have 60 days from the time the rule is officially posted in the Federal Register to make their projects and their subrecipients come into compliance with the rules in section § 59.13 and § 59.16 (pg 311). Compliance to the financial separations must done within 120 days, and compliance to the physical separation must be done within one year (pg 310). These compliance deadlines were extended from the deadlines in the original proposed rules due to the number of comments HHS received on the possible difficulty of coming into compliance so quickly, especially with the separation of funding.
These deadlines ensure no provider currently receiving Title X funds will have funds immediately yanked from them, should provide adequate time for providers to make necessary decision and arrangements on how they will come into compliance with the new rules, allows time for new providers to apply for funds, and overall ensures patients will not lose access to family planning and related healthcare services in the meantime.
The new rules enforce the clear purpose of Title X grants; and if by requiring stricter adherence to the goals of Title X, some or all service sites which provide elective abortions cease to offer that one service, it will be no loss at all in the quality of family planning healthcare for the people of America.
Compliance to the new rules properly closes loopholes to prevent taxpayer millions from funding abortions, while also actually providing women with more fully informed choices, more provider options, and more safe healthcare services by ethical clinics that far outnumber abortion clinics and Planned Parenthood, who has misused funds and covered up harm to women; thus, the new rules still fully fund Title X and protect and provide for women’s healthcare.
Update: New Title X rules under current Pres. Biden which roll back the ones made under former Pres. Trump are now being considered.