This has been a pivotal week in the battle to defund Planned Parenthood. The Supreme Court dismissed three cases challenging the Trump Administration’s “Protect Life regulations” defunding millions from Planned Parenthood. At the same time, we filed a new formal public legal comment urging the Biden Administration not to reverse the current pro-life rule.
As we explained earlier, the Protect Life regulations prohibit the use of Title X money “to perform, promote, refer for, or support abortion as a method of family planning.” Title X is a federal program dedicated to providing preconception family planning services to the nation’s neediest citizens. The regulations barred grant applicants from providing abortion counseling and referrals and required them to have financial and physical separation from any abortion provider. Under the prior regulations, physical separation was not required, and abortion clinics exploited this loophole. For example, the National Abortion Federation created an information packet on Title X, instructing abortion clinics that “[i]f a facility receiving Title X funding is itself an abortion provider, it may make what is known as a ‘self-referral.’”
In 2019, we helped rectify this situation, filing formal public comments supporting the Trump Administration’s Title X regulations that created a “bright line rule” preventing abortion providers from receiving a dime of taxpayer-funded Title X money. This rule was in direct alignment with the express language of Title X, which states: “None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.”
Because the Protect Life regulations cut off the federal funding gravy train for abortion mills, Planned Parenthood and 21 pro-abortion states challenged the regulations. As we told you, the Court of Appeals for the Ninth Circuit upheld the regulations but the Fourth Circuit issued an injunction against their enforcement in the state of Maryland. Because there was a split in the Circuits on the enforceability of the Protect Life regulations throughout all 50 states, the Supreme Court granted review.
Why, after deciding to hear the cases, did the Supreme Court dismiss them this week?
The short answer is that the Biden Administration asked the Court to dismiss the cases because President Biden is determined to restore funding to Planned Parenthood. The full answer is a little more complicated. After the Biden Administration asked the high Court to dismiss the cases, a group of states and Christian medical groups asked the Court for permission to intervene and defend the Protect Life regulations. Before ruling on the Requests for Intervention, the Court required the Biden Administration to file a letter brief informing the Court whether it would continue to enforce and defend the Protect Life regulations until they are repealed (President Biden promised to repeal the Protect Life regulations within days of taking office). The Administration represented to the Court that it would enforce the status quo, the current pro-life rule, until it repealed it. The Court then granted the Administration’s request for dismissal. But significantly, to ensure that the Biden Administration would honor its word, the Supreme Court added a proviso to its Order. It stated that if the Biden Administration fails to enforce and defend the Protect Life regulations while they remain in force, any affected parties can ask for relief in the lower courts and, if necessary, in the Supreme Court.
The upshot is that for now at least, Planned Parenthood continues to be denied access to taxpayer funding under Title X.
But that is not likely to last very long. As we explained, the Biden Administration’s Department of Health and Human Services (HHS) has proposed new regulations imposing an abortion referral mandate on all participants of the Title X program, even those fundamentally opposed to abortion.
The ACLJ is not giving up the fight; and on the same day that the Court dismissed the Protect Life regulation cases, the ACLJ filed formal public legal comments on behalf of itself and over 557,000 of our members who do not want taxpayer-funded Title X grants going to abortion providers, like Planned Parenthood.
Our public comment opposes the Biden Administration’s proposed rule because:
[It] is inconsistent with federal law, including Title X itself and the First Amendment to the Constitution, and would allow unconstitutional discrimination that discourages otherwise qualified healthcare providers from participating in the Title X program. All program participants deserve to have a clear understanding of both their obligations and protections under the law. Moreover, it is incumbent upon the federal government to use taxpayer-sourced funds in ways that are consistent with federal law. The proposed Rule does away with bright line rules that ensure taxpayer dollars are not used to promote or perform abortions.
We also point out that the Biden Administration’s reasoning for changing the current regulations is disingenuous, at best:
In justifying its reasoning for the proposed changes to the current Title X regulations, HHS states that “while section 1008 may be ambiguous, the public health consequences of the previous Administration’s interpretation of the statute are not.” HHS goes on to “outline the effects of the 2019 rule,” citing a decline in the number of family planning grantees, and a “dramatic” decrease in provision of family planning and related preventive health services.
However, a brief review of HHS’s Family Planning Annual Reports for the last ten years demonstrates that this “decrease” in Title X grantees and provision of Title X services cannot honestly be credited to the current regulations.
In addition, our legal comment directly confronts the Biden Administration’s sleight-of-hand attempt to require pro-life organizations to refer for abortions. While the statute establishing Title X clearly prohibits the funds from being “used in programs where abortion is a method of family planning,” the Biden Administration turns this on its head, stating that all participants “must . . . [o]ffer pregnant clients the opportunity to be provided information and counseling regarding . . . [p]regnancy termination.” Not only is this wrong as a matter of statutory interpretation, it violates federal law which protects conscience rights. We argue:
[T]he proposed Rule mandates abortion counseling and referral, without exception – other than if the pregnant woman specifically declines such information. In the preamble to the proposed Rule, HHS discusses the concerns and reasoning behind the 2019 regulations, and the conscience protections that were put in place. It is therefore difficult to understand why the Rule does not itself contain clear and unambiguous language regarding those conscience protections. This is especially true in light of Supreme Court precedent, including National Institute of Family Life Advocates v. Becerra, 138 S. Ct. 2361 (2018), where the Court rejected California’s efforts to compel the speech of pro-life pregnancy resource centers in the form of abortion referrals and written notice requirements. The Court held that the challengers to the California law were likely to succeed on the merits of their claim that the law was unconstitutional.
As HHS is fully aware, the abortion counseling and referral mandate also directly conflicts with numerous federal laws, including the Weldon Amendment. The Weldon Amendment prohibits “a Federal agency or program, or . . . a State or local government” from subjecting “any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
In addition to our own comments (joined by more than half a million of our members), more than 7,600 ACLJ members submitted their own individual comments to HHS opposing this rule change that would send millions of taxpayer dollars to Planned Parenthood and could force pro-life organizations to refer for abortions.
With the election of a staunchly pro-abortion Administration, the battle to defund Planned Parenthood has sustained a setback. But at least until the Administration’s new regulations are adopted, Planned Parenthood will not have access to taxpayer funding. With your continuing support, the ACLJ will never give up its efforts to stop government subsidization of Planned Parenthood.
This article was co-authored by ACLJ Associate Counsel Olivia Summers.
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