Trump Administration Will Use a Reagan-Era Rule To Strike at Planned Parenthood's Federal Gravy Train


A little later today, the Trump Administration will put into place a Reagan-era rule that has the potential to reduce abortions and Planned Parenthood’s access to federal money at one blow. The way it is being done is not optimal but it is probably the best we can hope for in the short run.

This is how it works. Right now, one of the major federal sources of Planned Parenthood’s funding is via Title X family planning grants. Title X is sort of eugenics-lite, it provides “family planning” and “reproductive health” services to low-income people…these are the same people who have access to this information via Medicaid. Federal law prohibits the use of Title X money for abortions but when Planned Parenthood is the grantee, the Title X activity is co-located in the abortion clinic and becomes, in effect, an abortion showroom where poor women are sold a service neither they nor their baby really need: abortion.

The rule change requires that any organization receiving Title X funds and providing abortions use a separate facility for family planning and the staff at the Title X clinic cannot be employed by the same business unit that performs abortions.

One Trump official said the rule would give Planned Parenthood and other groups that receive federal family planning money a choice: Disentangle themselves from abortion or lose government funding.

The official said the policy would require “a bright line of physical as well as financial separation” between programs that receive Title X funding and those that perform, support or make referrals for abortions.

A Trump administration official who detailed the coming proposal said it would neither prohibit nor require counseling on abortion.

This rule was first imposed under Ronald Reagan. It was litigated all the way to the Supreme Court where it was decided in Rust vs. Sullivan.

Section 1008 of the Public Health Service Act specifies that none of the federal funds appropriated under the Act’s Title X for family-planning services “shall be used in programs where abortion is a method of family planning.” In 1988, respondent Secretary of Health and Human Services issued new regulations that, inter alia, prohibit Title X projects from engaging in counseling concerning, referrals for, and activities advocating abortion as a method of family planning, and require such projects to maintain an objective integrity and independence from the prohibited abortion activities by the use of separate facilities, personnel, and accounting records. Before the regulations could be applied, petitioners — Title X grantees and doctors who supervise Title X funds — filed suits, which were consolidated, challenging the regulations’ facial validity and seeking declaratory and injunctive relief to prevent their implementation. In affirming the District Court’s grant of summary judgment to the Secretary, the Court of Appeals held that the regulations were a permissible construction of the statute and consistent with the First and Fifth Amendments.

Held:

1. The regulations are a permissible construction of Title X. Pp. 500 U. S. 183-191.

2. The regulations do not violate the First Amendment free speech rights of private Title X fund recipients, their staffs, or their patients by impermissibly imposing viewpoint-discriminatory conditions on Government subsidies. There is no question but that § 1008’s prohibition is constitutional, since the Government may make a value judgment favoring childbirth over abortion, and implement that judgment by the allocation of public funds.

3. The regulations do not violate a woman’s Fifth Amendment right to choose whether to terminate her pregnancy. The Government has no constitutional duty to subsidize an activity merely because it is constitutionally protected, and may validly choose to allocate public funds for medical services relating to childbirth but not to abortion.

This, as Joe Cunningham notes, is nibbling around the edges. That’s unfortunate but that is the way it is and we need to accept small and incremental advances in the fight for life for what they are, that is, advances. Pushing the Title X program into a different facility increases the overhead costs associated with participating in the program. By requiring staff to have no affiliation with the abortuary it increases personnel costs. Because the staff isn’t allowed to sell abortion, the Title X clinic contract becomes much less lucrative to Planned Parenthood. It also creates an additional audit vulnerability for Planned Parenthood in states inclined to shut that organization down.

The real tragedy in this is that the GOP treats abortion the same way that the Democrats treat DACA. It is a great fundraising tool and a good motivator for parts of your base. But it is only useful as an issue. Solving the problem, whether defunding Planned Parenthood or resolving DACA, is a negative because it is off the table as an issue.

Because of that, I’m resigned to this kind of nibbling in the hopes that eventually the horror of abortion will become apparent to a clear majority of Americans and they demand an end to it.

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