The new regulations eliminate Title X’s long-standing requirement for non-directive pregnancy options counseling and requires a “bright line” of physical and financial separation between the provision of family planning and abortion services
Title X is a super important public health program that provides folks with comprehensive family planning and related preventive health services. It’s designed to prioritize the needs of low-income families or uninsured people. Its overall purpose is to promote positive birth outcomes and healthy families by allowing individuals to decide the number and spacing of children.
The services provided by Title X grantees (the funding comes from the federal government) include family planning and contraception, education and counseling, breast and pelvic exams, breast and cervical cancer screening, screenings and treatment for sexually transmitted infections and HIV. It also focuses on counseling, referrals to other health care resources, pregnancy diagnosis, and pregnancy counseling. Title X funding does not pay for abortions.
Back in March of this year, the US Department of Health & Human Services published in the Federal Register a final rule making changes to the federal regulations governing the Title X national family planning program. The final rules dramatically change the existing Title X family planning program nationally and in AZ. The changes include:
Eliminating Title X’s long-standing legal and ethical requirement for non-directive pregnancy options counseling; and
Requiring a “bright line” of physical and financial separation between the provision of family planning and abortion services.
Numerous provider groups, state attorneys general and non-profit organizations sued and sought an injunction after the new Rules were announced in March (seeking an injunction to stop the rule from taking effect while the courts decide the legality of the rule).
Legal History of the Case
Multiple federal district court judges blocked the new restrictive rules from going into effect. On June 20, 2019, a three-judge panel of the Ninth Circuit Court of Appeals granted the Trump Administration’s request to lift the preliminary injunctions, allowing the new Title X rules to be enforced. In early July, the 9th Circuit court ordered the cases be reheard en banc (meaning by all the judges on the 9th circuit versus a three-judge panel).
On July 11, the en banc court refused to block the new Title X rules from taking effect, rejecting 20 states, the District of Columbia, and reproductive right advocates request to impose an emergency stay (indefinitely or temporarily suspend or stop proceedings).
So, what’s the bottom line then? For now- the new April Title X Rules that eliminate Title X’s long-standing legal and ethical requirement for non-directive pregnancy options counseling, and requiring a “bright line” of physical and financial separation between the provision of family planning and abortion services stand. There have been mixed signals from HHS whether Title X grantees will be contractually required to immediately comply with the new rules or not.
Earlier last week, published accounts suggested that HHS would be requiring immediate compliance with the new rules by their Title X contractors (including the Arizona Family Health Partnership). Later in the week, journalists quoted anonymous HHS sources suggesting that Title X grantees wouldn’t be immediately required to adjust their business processes. Late Saturday night grantees got a letter saying the HHS “does not intend to bring enforcement actions against clinics (grantees) that are making good faith efforts to comply” with the new rules. Perhaps grantees (including the Arizona Family Health Partnership) will hear something more specific this week.
Most likely there will be an appeal and rehearing of the challenge to the April Rules in the coming weeks.
A big thanks to AzPHA members Hannah Fleming, Leila Barraza and James Hodge for helping to straighten out this complicated legal case!