Several states have threatened to sue the federal Department of Health and Human Services over a new proposed rule designed to ensure that federal funds do not subsidize abortion. It's a contentious public policy issue that lots of people like to talk about, but few of them seem to understand the bizarre, convoluted legal history behind abortionists' misguided quest for taxpayer dollars.
"Title X" refers to a portion of the federal Public Health Service Act that authorizes federal funding for family planning services. (For purposes of this discussion, we will set aside the fundamental question of whether the Constitution provides Congress with legitimate authority to implement this program in the first place). Section 1008 of Title X expressly states that "None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning." Full stop.
In 1988, HHS adopted regulations to ensure that recipients of Title X funding complied with that requirement. Among other things, the regulations prohibited Title X recipients from counseling patients about abortion and required clinics that performed abortions to separate those services both physically and financially from the federally-funded family planning services.
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In 1991, the U.S. Supreme Court rejected a challenge to those regulations in Rust v. Sullivan. The Court ruled that they were a reasonable implementation of the federal statute, which it affirmed because Congress "may make a value judgment favoring childbirth over abortion and … implement that judgment by the allocation of public funds." The Court pointed out that Congress was simply limiting the scope of the project it was funding.
Fast-forward to 2000. Under the Clinton administration, HHS did an about-face, eliminating the 1988 enforcement efforts and actually mandating Title X recipients to provide counseling on abortion and refer patients for abortion services upon request.
Some state legislatures, which administer the Title X programs within their borders, responded by passing state laws to preclude the funding recipients from directly or indirectly promoting abortion. Under President Obama, however, HHS struck back against the states in 2016, by banning them from withholding Title X funds from abortion providers. That's right – instead of working to faithfully implement the original law passed by Congress, the federal agency forbade the states from making good-faith efforts to ensure compliance.
Against this historical and legal background, let's consider the newest rule proposed by the Trump administration, aptly entitled "Compliance with Statutory Program Integrity Requirements." The proposal simply seeks to ensure that the department administers Title X in a way that is consistent with the statute, by prohibiting the use of Title X funds to perform, promote, refer for, or support abortion as a method of family planning.
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Opponents like Massachusetts Gov. Charlie Baker have made the spurious claim that the change would "limit or significantly hinder, in some cases, perhaps deny women access to, Title X services. ..." In May, Rep. Lois Frankel (D-Fl) tweeted, "The Trump administration's gag rule will deny millions of women access to Title X."
Anyone who knows the facts can see the absurdity in suggesting that by complying with the express limitations of the Title X program – that no funding be directed toward abortion – the agency is denying women access to Title X services. Abortion is not a Title X service. It never was.
Likewise, claims that the proposed rule "violates women's constitutional right to reproductive choice" are either made in deceit or ignorance. As long as abortion remains legal, private actors remain free to perform the procedure and women remain free to seek it. But it is lunacy to suggest that something in the Constitution or federal law obligates taxpayers to foot the bill for it.
Some critics bemoan the possibility of women "losing access" to services other than abortion which some Planned Parenthood clinics provide. But if the organization chooses to take its ball and go home rather than operate a clinic that solely provides prenatal care, STD testing, contraceptives and other non-abortion services, criticism should be directed toward the organization – not toward the government.
At the end of the day, all this controversy about whether or not states should be allowed to funnel federal tax dollars to abortion providers is really just a debate over whether or not they should be required to obey a very clear provision of a duly-enacted federal statute. In other words, the heart of this "debate" is the simple question of whether our nation is still committed to the rule of law.