The changes, which opponents vowed to challenge, were celebrated by social conservatives who oppose abortion and helped elect President Trump. Health and Human Services Department officials have said they were necessary to ensure transparency and the legal and ethical use of taxpayer funds.
The move represents “decisive action to disentangle taxpayers from the big abortion industry led by Planned Parenthood,” Marjorie Dannenfelser, president of the Susan B. Anthony List, an antiabortion group, said in a statement.
Family Research Council President Tony Perkins said Planned Parenthood and other abortion centers now have to choose between shuttering their abortion services or moving them if they want to continue to receive federal funds. “Either way, this will loosen the group’s hold on tens of millions of tax dollars,” he said.
Critics, including 15 governors and the American Medical Association, decried the change as a “gag rule” that would undermine the physician-patient relationship and threatened legal action to block it from taking effect. They have also described it as an indirect way to defund Planned Parenthood, which has long been a target of antiabortion activists as the nation’s largest provider of reproductive care services.
New York Attorney General Letitia James (D) tweeted that the new rule is “dangerous & unnecessary,” putting millions of Americans at risk, and that the state would take legal action.
Planned Parenthood President Leana Wen called the rule “unconscionable and unethical.”
“Imagine if the Trump administration prevented doctors from talking to our patients with diabetes about insulin,” she said. “It would never happen. Reproductive health care should be no different."
Wen has said the group could not accept funds under the rule because it would compromise its ethical obligations to patients. The provider serves about 41 percent of Title X patients and receives about $60 million from the program.
The new rule is part of a broader effort by the administration’s social conservatives to reshape how the federal government treats a range of culture-war issues, including family planning, abortion and LGBTQ rights.
Health officials previously issued rules that allow employers to deny insurance coverage of birth control on religious or moral grounds. They had sought to emphasize abstinence in grant rules for the Teen Pregnancy Prevention Program, although they later reversed course. And they are seeking to allow faith-based foster-care and adoption providers who reject gay or non-Christian couples to continue getting federal funds.
The family planning rule published Friday is expected to result in a dramatic change in the type of information the women participating in Title X programs receive. Some of the faith-based groups advocate “fertility awareness,” which involves using ovulation predictors and calendars, and abstinence as methods of preventing pregnancy. Last year, HHS issued a funding opportunity announcement for Title X that elevates natural family planning and abstinence counseling as program priorities.
The new rule also eliminates a 2000 requirement that clinics provide “non-directive” pregnancy counseling, which might include information on abortion. HHS said that mandate is “inconsistent with federal conscience laws.”
Critics also took issue with a provision that seeks to “encourage appropriate family participation in family planning decisions,” which Carrie Flaxman, deputy director of public policy at Planned Parenthood Federation of America, said in a conference call with reporters is “dangerous” because it might discourage some adolescents from seeking appropriate care.
House Speaker Nancy Pelosi (D-California) said the changes will hurt already vulnerable families. “This outrageous assault on the health care of vulnerable and underserved women and families would choke off their access to affordable contraception, critical health information and preventive health care,” she said.
Democratic members of Congress last week objected to what they have called an “unconventional and nontransparent” review process for the rule and called on the Office of Management and Budget to send it back to HHS for more analysis. In a Feb. 15 letter, Rep. Elijah E. Cummings (Md.) and Sens. Patty Murray (Wash.), Kamala D. Harris (Calif.) and Maggie Hassan (N.H.) called out HHS for taking numerous shortcuts.
Among other concerns, they said, there was no advanced public notice and no early outreach to groups that participate in the program. Their letter pointed out that HHS had failed to provide an adequate cost-benefit analysis or to account for the rule’s negative health impacts on the poor women the program serves. And it noted that “numerous major medical associations, 15 governors, 200 members of Congress, more than 20 state and local health departments, and more than 500,000 members of the public submitted comments opposing the rule on constitutional, legal, ethical, and policy grounds.”
The Guttmacher Institute, a nonprofit research center that supports abortion rights, said it expects lawsuits seeking to stop the law’s implementation before it takes effect, 60 days after it is published in the Federal Register. Clinics will have 120 days to comply with the requirement that family planning and abortion services are kept financially separated and a year to comply with the physical separation requirement.
The rule, which was announced in May, was modeled after requirements adopted under President Ronald Reagan but never enforced.
The Trump regulation does allow for a limited exception to the referral ban. If a pregnant patient has decided to have an abortion and makes an explicit request for a referral, physicians would be allowed to provide a list of comprehensive care providers as long as they do not indicate which of them offer abortion services.
Referrals for abortion for emergency care, such as if a woman has an ectopic pregnancy — in which the fertilized egg implants outside the uterus and threaten her life — are also allowed.
The administration implemented a similar rule — nicknamed the “Mexico City gag rule” — for grantees of U.S. foreign aid that prevents organizations that get those funds from referring, providing or discussing abortion with patients.