Fairview Heights, IL—Jan 5, 2020; Sign on medical clinic announces Planned Parenthood branch is now open, the southern Illinois clinic was built to serve St Louis after Missouri restricted abortions.

Financing Reproductive Justice Through Title X

By Elizabeth Sepper

The Trump administration left Title X in tatters. In the last year, its capacity to finance family planning and reproductive health services for the poor was cut in half. Many family planning providers, including Planned Parenthood, whose clinics alone served 40% of patients, were forced out of the program. Six states were left with no active Title X providers at all. 1.5 million people lost access to care.

The Biden administration has said it will undo the harm. The Department of Health and Human Services (HHS) has promulgated new rules to restore the family planning network. But more than restoration is in order. The administration must actively pursue reproductive justice. Doing so will require Congress. But failure to do so will leave Title X’s poor and uninsured patients to serve as a political football once again.

Title X and the Trump Administration

Each year, Title X delivers family planning and sexual health services to more than 4 million people. Most are low-income or uninsured. Many are people of color. For many, their sole source of access to health care is Title X.

Title X funding does not pay for abortions, and grantees that provide abortions must hold it separate from other sources of funding. But the program has faced increasing anti-abortion attacks — most recently in the form of a 2019 Trump Administration rule.

The Trump Rule effected several major changes.

First, the rule banned grantees from referring patients to abortion providers or even counseling about abortion. Under this “domestic gag rule,” health care providers must violate their ethical obligations to their patients in exchange for family planning funds. The rule also required all pregnant people be referred for prenatal care, regardless of their wishes or needs.

Second, grantees had to have total physical separation between Title X services and abortion care — a provision intended to ban Planned Parenthood from the network.

Third, the rule undermined confidentiality for adolescents by requiring providers to gather information on their sexual partners.

Finally, the rule reversed the requirement that programs provide every “effective and available method” of family planning. Nor did grantees have to offer methods that are “medically approved.” With this switch, reproductive and sexual health funding were funneled to crisis pregnancy centers, instead of providers dedicated to evidence-based and patient-centered care.

Undo the Harm to Reproductive Autonomy

On April 14, 2021, HHS issued a new proposed rule that largely restores the 2000 regulations. It does away with the domestic gag rule and restores nondirective counseling. No longer can a patient be referred to prenatal care over her own objections.

As under the 2000 rule, organizations will have to continue to prevent the commingling of Title X funding and any abortion services funding. But, as before, they will not need to physically separate abortion care — a provision that should allow Planned Parenthood, among other organizations, to return to the network.

The proposed rule also removes the 2019 language that encouraged family participation in reproductive and sexual healthcare decisions. Confidentiality and sensitivity to clients’ needs are a significant advantage of Title X clinics. And teens will again be able to access service without providers having to gather information on their sexual partners.

Finally, the rule aims to ensure that projects provide “a broad range of acceptable and effective medically approved family planning methods.” An organization offering a single method may participate, as under the 2000 rule, but only if the entire project offers a broad range of family planning services. Patients should have access to methods ranging from natural family planning to IUDs.

Consistent with evidence-based medicine, Title X grantees will have to discuss options and make referrals consistent with the needs of pregnant patients. The proposed rule goes beyond the 2000 regulations to specify that referrals must be designed to avoid excessive distance, travel time, or cost to a patient. Service sites cannot become obstacles to continuity of evidence-based care.

The overarching goal of Title X has long been to ensure the autonomy of poor and uninsured people over their family planning. And the proposed rule makes serious commitments to strengthen the program. It explicitly requires client-centered and culturally and linguistically appropriate care. It makes a major advance through its emphasis on health equity, inclusivity, and quality.

Do Reproductive Justice

Still, HHS is failing to act with the urgency the situation requires. Title X has been decimated for the past two years. HHS estimates that it will take another two years before the program returns to equilibrium. To speed the process, the administration should suspend enforcement of the 2019 rule, as it did with Medicaid’s public charge rule. While Planned Parenthood and other grantees could not reenter the program, current grantees could treat their patients in ways consistent with evidence-based practice and respect for autonomy.

Turning back the clock to 2018 by regulation will not suffice. Title X’s current funding is less than 40% of what is needed to meet the need of U.S. families. Yet, the Biden Administration proposed a meager 18.7% increase for Title X. Congress should move to fully fund Title X. The program is fiscally responsible, generating $7 in government savings for each dollar spent. The American people overwhelmingly support its funding. Nonetheless, funding has decreased in actual and real terms, falling by 60% from 1980 to 1999. Grantees have been asked to do more with less as contraceptive technologies have expanded.

Congress also should specify Title X’s programmatic requirements with greater clarity. Reproductive health care organizations, for example, have recommended that legislation reinforce the alignment of the Title X program with the clinical standards for family planning developed by the CDC and the Office of Population Affairs. This would thwart future attempts to avoid non-directive counseling, through regulation.

Congress should also expand services to further foster poor people’s reproductive freedom. It should authorize federal funding of medication abortion through Title X. The prohibition on the performance of abortion prevents Title X from truly empowering patients. Even active referral can delay care and impede Title X’s goals of intentional family planning. Patients of Title X clinics deserve better access and continuity of care.

Likewise, Title X networks might serve as gateways for sex education. Planned Parenthood’s Teen Advocates for Sexual Health program could serve as a model. Proposals for doula care and coverage under Medicaid have taken off as a policy response to the national crisis of maternal mortality among Black women in particular. Title X networks could connect pregnant women to doulas and serve as training sites for doula support for an array of reproductive options.

Don’t Sleep on the Courts

The Biden Administration can’t sleep on the courts. It is practically guaranteed that any Title X rule will face legal challenges under the Administrative Procedure Act. Requirements to provide evidence-based care and non-directive counseling will also prompt suits from the religiously affiliated, non-comprehensive health providers admitted to the Title X network under the Trump rule. These grantees will draw on the abortion-specific Free Speech doctrine that the Supreme Court has developed. They seem likely to gain a boost from Fulton v. City of Philadelphia, a Free Exercise case the Court will soon decide that involves government contractors that object to complying with program requirements.

The administration must move with urgency to appoint federal judges to open seats. Justice Stephen Breyer must announce his retirement and be replaced. And Congressional Democrats must advance comprehensive court reforms to mitigate the Senate Republicans’ packing of the courts and their theft of a Supreme Court seat. Otherwise, it seems clear that any regulatory or legislative efforts toward health care reform and reproductive justice will be short-lived.

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