Biden begins to undo Trump’s ban on abortion referrals

The Biden administration on Wednesday began to undo a Trump-era ban on clinics referring women for abortions, a policy directive that drove Planned Parenthood from the federal family planning program and created new complications for women trying to get birth control.

The proposed rule from the Department of Health and Human Services follows through on President Joe Biden’s campaign promise to reverse his predecessor’s family planning policy, branded a “gag rule” by women’s groups and decried by medical associations as violating the doctor-patient relationship.

The 2019 Trump administration policy “abandoned (a) client centered approach over the objection of every major medical organization without any countervailing public health rationale,” HHS wrote in the Biden proposal. “That approach cannot be squared with well-accepted public health principles.”

However, the Biden administration stopped short of immediately suspending the Trump regulation, an additional step that some abortion rights advocates had sought. The Trump policy will remain in effect until it is formally superseded by the Biden rule, a process that can take months. Biden administration officials believe that exercising restraint now will increase the odds of the changes ultimately being upheld in court.

Known as Title X, the federal family planning program has been in place for decades. It makes available about $286 million annually in grants that support clinics serving mainly low-income women. Those clinics, which provide birth control and basic health care services such as cancer screenings, have been whipsawed by Trump-era battles over ideology and by the impact of the coronavirus pandemic on health services providers. Before exiting the program in 2019, Planned Parenthood and its affiliates served an estimated 40% of the patients.

Though by law federal family planning funds could not be used to pay for abortions, religious conservatives long regarded the program as a form of indirect subsidy to Planned Parenthood, the nation’s largest provider of abortions. Former President Donald Trump counted on religious conservatives as a cornerstone of his political base and acceded to their demands on a range of women’s health issues.

Besides banning abortion referrals, the Trump administration required federally funded clinics to financially and physically separate themselves from facilities that provide abortions. Abortion counseling was designated as an optional instead of a standard practice, and limits were placed on which staff members could discuss abortion with patients, among other requirements. Pregnant women were supposed to be referred for prenatal counseling even if they did not want it.

The Biden administration estimated that as a result of the Trump policy changes in 2019 the program serves about 1.5 million fewer women a year, a 37% reduction from the average caseload from 2016-18. HHS also estimated that the Trump administration’s changes may have led to up to 180,000 unintended pregnancies.

HHS said its proposed rule reversal will restore the program to how it ran in President Barack Obama’s years, when clinics were able to refer women seeking abortions to a provider. The Biden rules will also put a greater emphasis on affordability and on eliminating racial and ethnic disparities, although many of the program’s clients already are minority women.

“Ultimately, continued enforcement of the 2019 rule raises the possibility of a two-tiered health care system in which those with insurance and full access to health care receive full medical information and referrals, while low-income populations with fewer opportunities for care are relegated to inferior access,” HHS said in a statement. “This situation creates a widespread public health concern.”

The agency said it expects clinics that left the program will gradually return if the Biden policy goes into place, and Title X will again be serving about 4 million clients within a couple of years.

Release of the proposed regulations was the second blow to abortion opponents this week from the administration. On Tuesday, the Food and Drug Administration said women would not be required to visit a doctor’s office to get a prescription for an abortion pill for the duration of the coronavirus pandemic and instead could safely rely on telehealth.

The rule reversal on family planning clinics is proceeding alongside litigation over the Trump administration policy, now before the Supreme Court. In that case, the justices agreed to hear a challenge to the rules that Biden is now trying to unravel. The Biden administration and medical groups that filed the challenge are asking the court to dismiss the case, but Republican state attorneys general want to proceed. The court has yet to say what it will do.

The 1970 law that created the Title X family planning program stipulated that taxpayer money may not be used “where abortion is a method of family planning.”

Abortion rights supporters and opponents have argued over decades, through Democratic and Republican administrations, whether counseling a patient about abortion or referring a patient to a different provider for an abortion violates that language. Abortion remains a legal medical procedure, though improved access to birth control in recent years has led to a significant decline.

The Biden administration’s rule must go through a notice-and-comment period and additional review before being finalized, which can take several months.