The policy would require a “bright line” of physical as well as financial separation between these entities’ family-planning programs and any program that provides or supports abortion. Title X recipients could not refer clients to abortion clinics and could even opt out of the current regulatory requirement that they provide neutral, “nondirective” counseling about abortion to clients who request it.
The ultimate target is, of course, Planned Parenthood, which received a significant share of the $286 million in Title X grants for fiscal 2017.
This latest skirmish in the abortion wars may or may not lead to a Supreme Court case. If it does, it will be interesting to see what Justice Neil M. Gorsuch makes of it.
Trump put Gorsuch on the court expecting him to be a pro-life, conservative justice; certainly abortion opponents hailed his appointment on that basis.
Yet Trump’s proposed new curbs on Title X ultimately rest on a legal doctrine to which Gorsuch is famously hostile.
Our story begins in 1970, when Congress passed Title X, and President Richard Nixon signed it. Abortion was still illegal in most states. The statute included a provision reassuring abortion foes that no funds appropriated under the title would “be used in programs where abortion is a method of family planning.”
In 1988, an election year — like 2018 — the Reagan administration’s Department of Health and Human Services issued new rules interpreting this statutory language to forbid any counseling or referral for abortion services, even the “nondirective” kind, which had previously been allowed.
Reagan’s “gag rule” triggered an immediate legal challenge; the Supreme Court, however, upheld it in a 5-to-4 vote . Title X’s abortion language was ambiguous, the court held, and since HHS’s interpretation was “reasonable,” the court must defer to it.
As authority, the court cited its 1984 ruling in the landmark Chevron case — which brings us back to Gorsuch.
In a much-discussed 2016 opinion, then-circuit judge Gorsuch denounced Chevron as a threat to the constitutional system. The Constitution empowers judges, and only judges, to interpret statutes, he wrote, but Chevron outsourced the job to “executive bureaucracies,” allowing the latter “to swallow huge amounts of core judicial and legislative power.”
Under Chevron, Gorsuch wrote, an agency might “reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail” in court. Trump’s latest regulatory jab at Planned Parenthood, which would alter long-standing policy, seems to validate that point.
Gorsuch’s opinion represents originalism — the doctrine that courts must interpret the Constitution and statutes as written — at its most persuasive. It promised a rule for principled decision-making from which both liberals and conservatives could benefit, depending on the case.
The problem is that Title X is pretty ambiguous, just as the Supreme Court held in 1991 . What exactly does it mean to say that a “program” “uses” abortion for “family planning”? It seems clear that Congress did not intend directly to fund abortions, in part because it has said so many times since 1970. As for “counseling” women about pregnancy termination, “nondirectively” or otherwise, however, the statute is silent; regulators cannot possibly fill that void with rules that account for every variant of doctor-patient conversations. Could even the most brilliant judge do any better?
It so happens that the Reagan-era “gag rule” never took effect, despite the Supreme Court’s approval. A pro-choice Democrat, Bill Clinton, won the presidency in 1992 and withdrew the regulation. His Republican successor, George W. Bush, left Clinton’s policy undisturbed, and pro-life groups have been unhappy about that ever since, which is one reason they are extra delighted with Trump now.
Trump did not quite go all the way back to the Reagan rule, because he would still permit some “nondirectional” abortion counseling with federal money. The essence of his policy seems to be the effort to split Planned Parenthood into two parts, separated by a physical and financial “bright line,” one of which — and you can be sure Trump’s regulators will make sure it’s as big as possible — won’t be eligible for Title X dollars.
Good luck to the judges, armed only with Chevron, who might have to decide whether this is a “reasonable” interpretation of the underlying statutory mush, given the fungibility of Planned Parenthood’s various public and private funding sources.
The real solution is for members of Congress finally, after 48 years, to speak intelligibly on this evidently important subject. Or has dodging yet another intractable abortion issue been their real legislative intent all along?
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