THE FAMILY PLANNING PROGRAM FINAL RULE: 'A SOLUTION IN SEARCH OF A PROBLEM'.

• Author: Davis, Kristen A.

INTRODUCTION

In March of 2019, the Department of Health and Human Services ("Department") running the Title X Family Planning program issued a Final Rule concerning the program. (1) Title X is a federally run program that is devoted to providing access to family planning and preventative health services to lower-income and uninsured individuals in the United States. (2) But this Final Rule added changes that required many healthcare providers to completely overhaul their clinic programs to continue receiving federal funding. (3) The Final Rule has forced many clinics to drop out of the Title X program, including clinics run by nationwide providers like Planned Parenthood. (4) Planned Parenthood claims that it provided services to about forty percent of the four million women that use Title X program funding. (5) Clinics dropping out of the Title X program is particularly troubling because the Fourth Circuit has found that "[f]or [sixty percent] of Title X patients, their Title X provider was their only source of medical care in the last year." (6)

In Part I, this Note will examine the background of the Title X: Family Planning Program and explain the Final Rule. In Part II, this Note will explain the Final Rule's provisions related to Nondirective Pregnancy Counseling; in Part III, the provisions requiring clear physical and financial separation; and in Part IV, the provisions that prohibit healthcare providers from giving referrals for abortion. In Part V, this Note will analyze the relevant case law concerning Title X's Family Planning Program. Finally, in Part VI, this Note will argue that the Final Rule should be invalidated because it is arbitrary and capricious and lacking a rational basis. This Note will not substantially address First Amendment concerns or due process issues.

1. BACKGROUND

   The World Health Organization defines family planning as "allow[ing] individuals and couples to anticipate and attain their desired number of children and the spacing and timing of their births." (7) In 1970, the federal government created a family planning program, through Title X of the Public Health Service Act, that was designed to fund "family planning and related preventive health services." (8) Title X is the only domestic federal program that focuses entirely on family planning services. (9) The following services are offered by the program: "contraceptive services; natural family planning methods; infertility services; services to adolescents; breast and cervical cancer screening and prevention; sexually transmitted disease (STD) and HIV prevention education, counseling, testing, and referral; preconception health services; and counseling on establishing a reproductive life plan." (10) The program also offers pregnancy testing and counseling. (11) Title X is administered by the Office of Population Affairs' Office of Family Planning and funded through the Health Resources and Services Administration. (12)

   Section 1008 of Title X prohibits the funding of abortions. (13) This ban overlooks the necessity of abortions by families to effectively control the spacing and timing of their children. (14) The Title X program has a history of changing its interpretation of section 1008. (15) Section 1008 states "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." (16) From 1970-1988, the Department interpreted section 1008 to mean that Title X providers could not promote or encourage abortion as a family planning method as a part of their program. (17) In 1981, the Department further interpreted this provision to require Title X providers to give clients nondirective counseling that included abortion as an option and referrals for abortions. (18) The Department found that nondirective counseling and abortion referrals did not "have the effect of promoting or encouraging abortion." (19)

   In 1988, the Department released a new set of regulations "to give specific program guidance" and to outline the limitations of using Title X funding "where abortion is a method of family planning." (20) These regulations prohibited healthcare providers from either counseling about, or referring patients for, abortion; required clinics to both physically and financially separate Title X activities from any activities where abortion is used as a family planning method; and prohibited the use of Title X funding for lobbying efforts related to abortion. (21) The prohibition of abortion counseling and referrals became colloquially known as the Gag Rule because it prevented health care providers from counseling their patients on abortion. (22) In 1988, a lawsuit was brought against the Department over the new regulations, which will be discussed in greater detail in Part V. (23) While the Supreme Court did not invalidate the new regulations, they were short-lived, lasting only five years. (24) The impetus for the rule change came from a "widespread concern" over the 1988 regulations. (25)

   From 1991-2018, the Department adopted multiple regulations that allowed Title X providers more discretion concerning abortion in their programs. (26) In 1993, the Department suspended the 1988 regulations and the family planning program reverted back to the 1981 guidelines. (27) In 1996, Congress added a rider to the HHS appropriations act that required all pregnancy counseling to be nondirective, which would include abortion. (28) In 2000, the Department issued new regulations that required Title X providers to offer both pregnancy counseling and referral for abortion if a patient requested that information. (29) These regulations even went so far as to say "the provision of neutral and factual information about abortion is not considered to promote or encourage abortion as a method of family planning." (30)

2. NONDIRECTIVE PREGNANCY COUNSELING

   Under the Final Rule, Title X no longer requires pregnancy counseling, but allows the use of Title X funds in programs that utilize nondirective pregnancy counseling. (31) "Nondirective pregnancy counseling is the meaningful presentation of options where the physician or advanced practice provider (APP) is 'not suggesting or advising one option over another.'" (32) Advanced practice providers include nurse practitioners, physician assistants, and clinical nurse specialists. (33) However, under the Final Rule, nondirective pregnancy counseling is not required to include any information about abortion. (34) Additionally, Title X providers may provide patients with a list of primary health providers, "some (but not the majority) of which may provide abortion in addition to comprehensive primary care." (35) Furthermore, all family planning methods and services must be strictly voluntary and not coercive. (36)

   The Final Rule's provision that nondirective pregnancy counseling is not required to include any information about abortion differs from the 2000 regulations which required Title X projects to provide nondirective counseling that includes information on abortion and abortion referrals, if requested. (37) Leaving out abortion arguably violates one of the core principals of the medical profession, the concept of autonomy, which is embodied in informed consent. (38) Informed consent includes giving the patient information about the "burdens, risks, and expected benefits of all options, including forgoing treatment." (39) Nondirective pregnancy counseling, that includes the option of abortion, is essential for adequate informed consent because the patient is entitled to information about all of the options available to them. (40) National medical professional associations have stated that omitting treatment options would directly conflict with the codes of medical ethics. (41)

   Even the inclusion of the words "if requested" in the 2000 regulations is antithetical to the concept of informed consent because a patient should not be required to ask the doctor about treatment plans. (42) The "if requested" provision places the burden on women who are already in a new and vulnerable position to ask for information about abortion. (43) This could be difficult for patients because of the stigma surrounding abortion and fear of judgment from the healthcare professional. (44) With nondirective pregnancy counseling, these issues disappear because the patient is simply given information about all of the options without any emphasis being given to one specific type. (45) Furthermore, nondirective pregnancy counseling does not obligate a patient to ask about specific procedures to ensure that the patient is receiving information about all relevant options. (46)

   However, the current Department believes that it is not necessary for women's health providers in the Title X program to give information about abortion or abortion providers. (47) In making this determination, the Department cited the prevalence of information about abortion and abortion providers available on the internet. (48) But, if a federally funded institution holds itself out as helping women with health issues, then that institution should address the major areas of women's health. Many patients would prefer that doctors give them more information before making a decision on treatment. (49) Furthermore, information on the internet is not accessible to every person. (50) Not every woman has access to the internet and even if every woman did have access to abortion websites, the internet is full of incorrect, misleading, and confusing information. (51) There is plenty of information online about cancer, but oncologists do not expect patients to bring prospective procedures to them. (52)

   Even when women can find correct information about abortion online, they may still need a healthcare provider to explain the process to them and how the procedure will affect them individually. (53) A clinic in Alabama explained that every time a new TRAP (targeted regulation of abortion...