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Biden Unwinds Trump-Era ‘Gag Rule’ Banning Abortion Referrals (1)

Oct. 4, 2021, 8:38 PMUpdated: Oct. 4, 2021, 9:15 PM

Federally funded doctors will be able to refer pregnant people to facilities that provide abortions under a final rule (RIN 0937-AA11) released Monday by the Biden administration.

The measure, a reversal of a Trump-era final rule (RIN 0937–ZA00) banning such referrals, will take effect 30 days after publication in the Federal Register. The Biden rule was proposed April 14 and received over 180,000 comments.

“This rule is a step forward for family planning care as it aims to strengthen and restore our nation’s Title X program,” Health and Human Services Secretary Xavier Becerra said in a statement. “Our nation’s family planning clinics play a critical role in delivering health care, and today more than ever, we are making clear that access to quality family planning care includes accurate information and referrals—based on a patient’s needs and direction.”

Opponents to the Trump-era rule dubbed it a “domestic gag rule” because it nixed a requirement that providers offer pregnant people the chance to receive unbiased counseling on their options, including termination.

Providers may offer patients the opportunity for “nondirective options counseling” on prenatal care and delivery, infant care, foster care, adoption, and abortion once the rule takes affect.

The final rule is another example of the tension between the president’s agenda, the Supreme Court, and Congress when it comes to abortion. With a right-leaning Supreme Court, the Biden administration is using other avenues to uphold abortion rights.

Under the Trump-era order, providers were prohibited from using Title X funds to “perform, promote, or support abortion as a method of family planning.”

Title X of the Public Health Services Act is a federal grant program for family planning, which finances community clinics and other facilities to provide these services. The program supports “millions of low-income or uninsured individuals,” according to the HHS.

“Advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality, is a priority,” said HHS Assistant Secretary for Health Rachel Levine. “This 2021 regulation will allow for the Title X service network to expand in size and capacity to provide quality family planning services to more clients.”

If the Trump-era rule were still enforced, it would raise “the possibility of a two-tiered healthcare system in which those with insurance and full access to healthcare receive full medical information and referrals, while low-income populations with fewer opportunities for care are relegated to inferior access,” the HHS said.

Providers receiving Title X funding are still prohibited from “directly promoting or performing abortion” due to statutory requirements.

The Biden ordinance undoes a requirement that clinics that receive federal funds maintain a “strict physical and financial separation” from facilities that provide abortions.

Family planning services must now be “client-centered, culturally and linguistically appropriate, inclusive, trauma informed, and capable of ensuring equitable and quality service delivery,” the HHS said.

Wavering Policy

The Title X requirements have flip-flopped a number of times since they were enacted in 1970. Providers were banned from discussing and referring patients to abortions under a Reagan-era rule in 1988, the ban was reversed under a Clinton-era rule in 2000, and, for two decades, “Title X faced no litigation or controversy over these regulations,” the HHS said.

Twenty-three states and “every major medical organization” sued the HHS after the Trump-era rule went into effect, the agency said.

While the section banning Title X funds from being used in facilities “where abortion is a method of family planning"—Section 1008—"may be ambiguous, the public health consequences of the previous Administration’s interpretation of the statute are not,” the HHS said.

The Title X program lost over 1,000 service sites after they withdrew from the program due to the Trump rule, according to the HHS. Marginalized communities were hit hard, with many low-income, uninsured, and minority populations losing access to family planning services.

Some who commented on the rule said they were concerned that the HHS data did not account for the Covid-19 pandemic’s impact on the decline in services. Since the Trump-era rule took effect halfway through 2019 and Covid-19 “was not announced as a national emergency until early 2020,” the HHS said it disagrees with the concerns about data.

(Updates with additional reporting throughout.)

To contact the reporter on this story: Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com