The Gag Is in Place

Across the country, low-income and young women are facing increasing barriers to reproductive health care because of a gag rule recently imposed by Donald Trump’s administration on recipients of Title X, the federal family planning program. The gag rule bars providers who either perform abortions or refer patients for the procedure from receiving Title X funding for free and discounted contraception, testing for sexually transmitted diseases and cancer screening services.

Title X supplied $286.5 million in 2018 to independent women’s health clinics; Planned Parenthood; and state, county and city health services to provide care for more than 3.9 million people, including 600,000 teens. Nearly half the people served at Title X clinics are people of color.

“I had a young teen who comes to us for confidential contraceptive services crying because we could not give her a pack of pills,” Massachusetts clinician Jenny Fleming told Ms. Her health care center could no longer use contraception purchased with Title X money because they refer patients for abortion services. “The impact on people’s lives is very real and very immediate.”

Massachusetts quickly stepped in to cover the funding gap created by the Trump rule, but Fleming, a reproductive health care nurse for more than 40 years, is worried about the future. “We already have… in terms of the developed world… the leading number of unplanned pregnancies,” she notes.

Congress created Title X in 1970 with bipartisan support to provide reproductive health care, including contraceptives, to uninsured, young or otherwise disadvantaged patients. In 1988, Ronald Reagan’s administration adopted a rule restricting health care providers receiving Title X funds from providing abortion counseling or referrals to their patients—which opponents dubbed the “domestic gag rule” to distinguish it from the “global gag rule,” a similar restriction Reagan placed on international family planning funds. The Supreme Court upheld the rule in Rust v. Sullivan, but Bill Clinton’s administration reversed the policy in 1993 and Congress has required that Title X recipients provide pregnant women with “neutral, factual information and non-directive counseling” ever since.

But in March of this year, the Trump administration defied Congress’ mandate, issuing a gag rule that prohibits health centers that receive Title X funds from informing pregnant patients of all their options. Instead, Title X providers must—in violation of their medical and ethical responsibilities—refer women directly to prenatal care, regardless of their intentions for the pregnancy.

“There’s no other form of health care… where you can only talk about certain kinds of solutions and not others,” says Cheryl Zoll, CEO of Tapestry Health, which has reproductive health clinics in Massachusetts. “It would be like if [a patient] had diabetes… and there was a federal program that said you [the provider] had to tell them, ‘OK, don’t eat so much sugar and exercise more,’ but you’re not allowed to tell them about insulin… That’s not quality care; that’s really coercive care.”

The gag rule outright blocks the availability of federal funds to family planning providers that also offer abortion care, such as Planned Parenthood, and encourages participation by “nontraditional” organizations. The Trump administration has already granted $1.7 million in Title X funding this year to the coercive Obria Medical Clinics, a Christian, antiabortion organization that opposes hormonal birth control and other contraceptives and offers training in the unreliable rhythm method.

In response to the administration’s announcement, 19 medical organizations representing 4.3 million health care providers, including the American College of Obstetricians and Gynecologists, immediately issued an open letter protesting the revisions. “Title X plays a vital role in the fabric of America’s family planning safety net,” they stated. “The final regulation is the latest of numerous recent decisions—from rolling back insurance coverage for contraceptives to attempting to eliminate funding for evidence-based teen pregnancy prevention programs—that unravel the threads of this safety net.”

The rule was quickly challenged in court in multiple suits by the National Family Planning & Reproductive Health Association (NFPRHA), Planned Parenthood and other providers, 21 states and the District of Columbia, the American Medical Association and numerous women’s rights organizations. They argue that the Trump rule—in addition to flouting the congressional mandate on “neutral” counseling—violates the Affordable Care Act, which prohibits the Department of Health and Human Services from adopting a regulation that “restricts the ability of health care providers to provide full disclosure of all relevant information;” “violates the principles of informed consent and the ethical standards of health care professionals;” or “interferes with communications regarding a full range of treatment options between the patient and the provider.” Advocates argue that the gag rule does all three.

In June, federal district court judges in California, Oregon, Washington and Maryland temporarily blocked the rule until courts could hear the merits of the case. A U.S. district court in California found that the rule would likely “decimate the network of Title X providers in California and drastically reduce patients’ access to a wide range of vital services.”

But in July, the U.S. Courts of Appeal for the 4th and 9th Circuits reversed the lower courts’ temporary injunctions and allowed the rule to go into effect while the cases are pending. As of July 15, the Trump administration began enforcing its gag rule. The government gave clinics until Aug. 19 to decide whether to comply with the rules or forgo funding.

Six states rejected Title X under the Trump administration’s terms, and at least four of them announced that they planned to cover the shortfall from their own budgets. Many Title X clinics, including Planned Parenthood, have withdrawn from the program. Planned Parenthood, which serves 41 percent of the approximately 4 million Title X patients, stands to lose $60 million from its annual budget, though donations may fill in the gaps for the near future.

Before Trump’s gag rule, Title X funds were used to prevent roughly 1 million unintended pregnancies per year. In 2016 alone, health clinics used Title X to pay for 720,000 Pap tests, nearly 1 million breast exams and more than 4 million STD tests (including for HIV)—a vital service given that cases of chlamydia, gonorrhea and syphilis were all increasing, according to the Centers for Disease Control and Prevention’s latest report.

If Trump’s gag rule is not overturned, reproductive health clinics nationwide will have to reduce services offered, reduce their hours, charge more or even close, says Laurie Sobel, associate director for women’s health policy at the Henry J. Kaiser Family Foundation. “Capacity will diminish, while in most cases the demand is going to go up [because] there are fewer clinics.”

Clinics that have withdrawn from the Title X program are making up funding losses through state grants and, like Planned Parenthood, through private fundraising but “no one is going to be able to sustain that indefinitely,” Clare Coleman, president of NFPRHA, says. “For many people, they are just hoping to hang on—both folks in the program… and folks who have withdrawn. Everyone is trying to hang on and hope that this will end,” she says, either through reversal in the courts or through political change in the fall 2020 elections.

As her organization’s case moves through the 9th Circuit, Coleman remains confident. “The Title X family planning gag rule is unlawful, disrespectful of patients’ health needs, disregards the government’s own standards of care and must be rejected to protect the 4 million patients who rely on Title X,” she says. “This is the fight of our generation.”


This piece appears in the Fall 2019 issue of Ms.

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About

Carrie N. Baker is Professor and Director of the Program for the Study of Women and Gender at Smith College. Her 2007 book The Women's Movement Against Sexual Harassment won the National Women’s Studies Association Sara A. Whaley Book Prize. Her second book, Fighting the US Youth Sex Trade: Gender, Race and Politics, tells the story of activism against youth involvement in the sex trade in the United States between 1970 and 2015.