Pictured: Planned Parenthood Center manager and her staff standing at the Gwinnett Planned Parenthood in Lawrenceville, Georgia, USA on April 23, 2016. PHOTO CREDIT: ELIZABETH GREENEWALD. Elizabeth Greenewald [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)]. [Disclaimer: The Journal of Health and Biomedical Law and Suffolk University do not own the rights to this image and have not altered the image in any way]. https://commons.wikimedia.org/wiki/File:Planned_Parenthood_Abortion_Center_Manager_in_Lawrenceville,_Georgia_April_2016.jpg. https://upload.wikimedia.org/wikipedia/commons/7/7a/Planned_Parenthood_Abortion_Center_Manager_in_Lawrenceville%2C_Georgia_April_2016.jpg. https://creativecommons.org/licenses/by-sa/4.0/deed.en
By Bridget Reardon
Recently, Planned Parenthood has made headlines for refusing to abide by the Trump administration’s changes in Title X regulations. These regulations condition that abortions cannot be performed in the same facilities that receive Title X funds, that offices must physically and financially separate if they wish to receive federal family planning funds from Title X and that providers at Title X grantees not refer patients to abortion providers.
Title X is a federal grant program that was enacted in 1970 by the Nixon administration. The program’s purpose was to provide low income people with family planning and reproductive health services. To put that into prospective, Griswold v. Connecticut, the Supreme Court decision that allowed married couples to use contraceptives was only decided five years prior to the enactment of Title X in 1965. Baird v. Eisenstadt did not legalize birth control for all citizens in the United States regardless of their marital status until 1972. Three years after Title X was enacted, Roe v. Wade made abortion a constitutionally protected right in 1973. Despite these overarching achievements in reproductive health and family planning the United States has made in the past fifty years its clear that there is still a long way to go.
Title X is very much a function of the sitting President and that President’s choice for Secretary of Health and Human Services. President Trump selected Alex M. Azar as his Secretary for the Department of Health and Human Services. Azar was the Deputy Secretary for the Department of Health and Human Services under former President George W. Bush and clerked for former Supreme Court Justice Antonin Scalia. Azar has referred to withdrawing Planned Parenthood from the Title X program as a victory for the pro-life Trump administration.
As Secretary, Azar has significant latitude to decide which regulations the Department of Health and Human Services promulgates. Title X, for example has been in existence for nearly 50 years at this point. During that time, one could argue that Title X regulations were most significantly amended by the Reagan Administration. The Reagan Administration issued regulations to physically and financially separate facilities that performed family planning and abortion services from each other and forbid grantees to counsel or refer patients to facilities or doctors that could provide abortions… Sounds familiar, right?
This same issue also went all the way to the Supreme Court in Rust v. Sullivan. Rust was decided in 1991 by a predominantly conservative court. The Rust Court stated that, “A legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right. A refusal to fund protected activity, without more, cannot be equated with the imposition of a ‘penalty’ on that activity.” At the time, the liberal justices on the Court issued scathing dissents.
Justice Harry Blackman, the author of the majority decision in Roe v. Wade, wrote a dissent joined in whole by Justice Thurgood Marshall, in part by Justice John Paul Stevens and in part by Justice Sandra Day O’Connor:
Casting aside established principles of statutory construction and administrative jurisprudence, the majority in these cases today unnecessarily passes upon important questions of constitutional law. In so doing, the Court, for the first time, upholds viewpoint-based suppression of speech solely because it is imposed on those dependent upon the Government for economic support. Under essentially the same rationale, the majority upholds direct regulation of dialogue between a pregnant women and her physician when that regulation has both the purpose and the effect of manipulating her decision as to the continuance of her pregnancy. I conclude that the Secretary’s regulation of referral, advocacy, and counseling activities exceeds his statutory authority, and, also, that the regulations violate the First and Fifth Amendments of our Constitution. Accordingly, I dissent and would reverse the divided-vote judgment of the Court of Appeals.
However, much has changed since Rust was decided in 1991 considering the Court’s later decisions in Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt. In 1992, the Casey court adopted a new standard for abortion laws. This standard is known as the “undue burden” standard. It is under Casey that a person has a right to “…have an abortion before viability and to obtain it without undue interference from the State.” The Casey rule asks whether the abortion law at issue places an undue burden on the person trying to obtain an abortion. Any substantial obstacle to a woman’s choice to undergo an abortion would be considered an undue burden. Applying this standard from Casey to the current Title X Regulations which forbid healthcare providers from referring women to abortion doctors or even from performing abortions in their own offices, the current regulations present a substantial obstacle for those seeking an abortion. If a person cannot have an open, honest, conversation with their doctor about ALL of their options when it comes to family planning, then Title X fails to provide the family planning that it was intended to provide.
Another function of the Title X regulations that Planned Parenthood has refused to comply with is the requirement that any facility that provides abortions must be physically and financially separate from a facility that accepts Title X funds. It would be an enormous financial burden for a facility that receives Title X funds to completely physically and financially separate the portion of its facility that performs abortions from the rest of its operation. This rule could force many facilities to close their doors or pull out of the grant program completely, or in some cases, both. However, this is not the first time we have seen the overregulation of facilities that perform abortions in an effort to regulate them out of business.
Whole Women’s Health v. Hellerstedt, decided in 2016, dealt with a Texas regulation that in part forced facilities that performed abortions to follow requirements typically reserved for major surgical centers. These requirements included specifications on the size of the nursing staff, building dimensions and other building requirements. The Supreme Court upheld the District Court’s finding that the requirements did nothing for patients, were not necessary and were only meant to place a substantial obstacle in the path of women seeking an abortion. Justice Ginsburg’s concurring opinion stated, “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.”
Title X’s increased regulation are a means to force providers of family planning services to withdraw from a grant program meant to provide family planning to low income people. Family planning for most people includes discussing and getting referrals to plan the most private aspect of their life – whether they wish to make a family of their own or terminate a pregnancy. These increased regulations are aimed at placing a substantial obstacle in the way of low income women who may see abortion as an option. A woman’s conversations with her doctor about her pregnancy should not be a subject to attack via increased regulation from the Trump Administration.
Planned Parenthood provides 41% of Title X family planning services across the country. There is no doubt that its withdrawal from this program will have a reverberating effect. Planned Parenthood’s withdrawal from this program is both alarming for the possible effect on our low-income population’s access to care. At the same time, Planned Parenthood’s withdrawal is also admirable for its resilience to provide its patients with the best quality care for ALL of their family planning needs.
Education about family planning services begins for most people – of all income levels – in schools. For a further discussion of accurate age appropriate reproductive healthcare education in schools please consider attending the Journal of Health & Biomedical Law’s Spring 2020 Symposium – Education as Healthcare.
Bridget Reardon is a 3L Day student at Suffolk. She is JHBL’s Chief Symposium Editor for 2019-20.
Sources:
https://lozierinstitute.org/ten-truths-about-title-x/
https://www.foxnews.com/politics/trump-pro-life-end-abortion-enterprise-hhs-secretary-court-victory
https://www.hhs.gov/about/leadership/secretary/alex-m-azar/index.html
https://www.hhs.gov/opa/title-x-family-planning/title-x-grantees/index.html
https://www.hhs.gov/opa/title-x-family-planning/about-title-x-grants/index.html
https://www.ourbodiesourselves.org/book-excerpts/health-article/a-brief-history-of-birth-control/
https://www.oyez.org/cases/1990/89-1391
https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf
https://www.theatlantic.com/politics/archive/2019/08/planned-parenthood-fight-trump/596410/
https://www.law.cornell.edu/supremecourt/text/15-274
https://www.law.cornell.edu/supremecourt/text/381/479
https://www.law.cornell.edu/supremecourt/text/410/113%26amp
https://www.law.cornell.edu/supremecourt/text/500/173
https://www.law.cornell.edu/supremecourt/text/505/833
http://planned-parenthood-title-x.html
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.