Biden administration moves to reverse Trump-era abortion referral rule

The Biden administration said Wednesday it will replace a Trump-era rule barring certain federally funded health care providers from referring patients for abortions, a step long demanded by abortion rights groups.

The Department of Health and Human Services unveiled the proposed regulation to reverse the Trump administration’s rule blocking providers in the Title X family planning program from referring patients for the procedure.

“Those rules have undermined the public health of the population the program is meant to serve,” HHS said in a statement.

Federal courts have been split on the Trump administration’s regulation, which critics call a “gag rule” and proponents say better aligns with Title X program requirements that bar the funds from being used for abortion. The Hyde Amendment still bars federal funding from covering abortions, except in cases of rape, incest or when the woman’s life is at risk.

Abortion rights groups cheered the move on Wednesday, with the Planned Parenthood Action Fund slamming the Trump-era rule as a “dangerous policy (that) undermines the only federal program dedicated to providing sexual and reproductive health care to people with low incomes.”

Title X is a federally funded program that served about 4 million people in 2019, according to HHS. It provides resources including contraception, breast and cervical cancer screenings, and preventive education and testing for sexually transmitted diseases and HIV — but not abortions.

Before the Trump-era rule, which is currently in effect in most states, Title X clinics were required to offer non-directive abortion counseling and referrals upon request. In 2019, HHS moved to bar health care providers participating in the program from offering abortion referrals, prompting multiple federal court challenges in which federal judges blocked the rule. That August, however, the 9th US Circuit Court of Appeals allowed the rule to go into effect despite the ongoing challenges against it.

The effects of the rule have been stark. Around 1.5 million people lost access to Title X coverage after the rule was implemented, Audrey Sandusky, communications director for the National Family Planning & Reproductive Health Association, told CNN earlier this year.

Planned Parenthood — which had covered 40% of Title X’s patients and had been involved with the program since it began, according to the organization — withdrew from the program soon after the 9th Circuit decision. Additional clinics dropped out of the program once the rule took effect, leaving six states without Title X providers, according to data from the nonpartisan Kaiser Family Foundation. More than 1,000 Title X sub-recipients and sites — about 25% of the 4,000 clinics in the program prior to the rule — have withdrawn from the program, per Kaiser.

The court fight over the rule was renewed in 2020, when the 4th US Circuit Court of Appeals upheld a lower court’s block on the rule, resulting in conflicting rulings. In turn, the American Medical Association, the main industry group for doctors, and other health care and reproductive rights groups asked the Supreme Court to block the rule in October. Later that month, 21 states and the District of Columbia filed another challenge over the rule.

President Joe Biden weighed in on the rule soon after taking office, signing a January memorandum directing HHS to immediately move to consider rescinding it along with. He also rescinded the so-called Mexico City Policy, a ban on US government funding for foreign nonprofits that perform or promote abortions.

Clare Coleman, president of the National Family Planning & Reproductive Health Association, said that the group was “relieved” at the Biden’s administration’s move Wednesday, but urged the administration to block the Trump rule while its own proposed regulation advances.

“This proposed rulemaking leaves more than 2,600 health centers subject to program rules that the Biden administration and the provider network find untenable,” she said. “Our field deserves relief now.”

Anti-abortion supporters slammed the new rule. Citing the Biden Administration’s move on Tuesday to suspend the in-person dispensing requirement for medication abortion during the pandemic, Susan B. Anthony List President Marjorie Dannenfelser said that their “latest push to bail out the abortion industry proves there is no rule they won’t rewrite or simply ignore to get their way,” asserting that they “pursue this extreme, unpopular agenda at their political peril.”

The proposed rule will face a 30-day public comment period before the department makes a final decision on it.