New Trump Administration Rule Will Force Doctors to Stop Saying “Abortion”

CHICAGO, IL - MAY 18:  A cyclist rides past a Planned Parenthood clinic on May 18, 2018 in Chicago, Illinois. The Trump administration is expected to announce a plan for massive funding cuts to Planned Parenthood and other taxpayer-backed abortion providers by reinstating a Reagan-era rule that prohibits federal funding from going to clinics that discuss abortion with women or that share space with abortion providers.  (Photo by Scott Olson/Getty Images)
Anti-abortion activists have been pushing this rule since Trump’s election. Scott Olson/Getty Images

The Trump administration is planning to instate a rule that will bar recipients of federal family planning funding from educating women about abortion options, making referrals to doctors that provide abortions, or providing abortion care. Conservatives have cheered the move as a way for the federal government to partially “defund” Planned Parenthood without requiring an act of Congress.

Reproductive-rights advocates are calling the policy a “domestic gag rule”—a U.S.-based version of the global gag rule that prevents U.S. aid dollars from going to any international organization that so much as acknowledges the existence of abortion. Every Republican president has instated the global gag rule since Ronald Reagan first implemented it; every Democratic president has rolled it back.

The domestic gag rule started with Reagan, too, in 1988. It affects money affiliated with Title X, the federal family planning grant program launched under Richard Nixon that provides subsidized contraception, gynecological care, and screenings for cancer and sexually transmitted infections. In 2016, the program served more than 4 million patients, about two-thirds of whom were living at or below the poverty line. Planned Parenthood is a disproportionately important player in the Title X ecosystem: Its health centers make up just 13 percent of Title X family planning providers in the U.S., but they serve 41 percent of all Title X patients.

Title X money is already barred from funding abortion care; grant recipients that provide abortions keep the money separate in their accounting. But the domestic gag rule would additionally require Planned Parenthood clinics and other abortion providers to enforce a physical separation between its Title X–funded services and its abortion work, with separate staff dedicated to each. Doctors providing family planning care to Title X patients would not be able to discuss abortion at all.

When Reagan first instituted the rule, Planned Parenthood and other reproductive-rights organizations immediately sued the federal government, claiming the rule violated caregivers’ rights to free speech and women’s rights to a constitutionally protected medical procedure. “The regulations will…censor communications between doctors and other health professionals and their patients on matters of vital medical significance,” read a complaint Planned Parenthood filed against then–Health and Human Services Secretary Otis Bowen. “The failure to provide complete information about pregnancy management at the earliest possible point in the pregnancy, and the failure to make necessary or appropriate referrals as early as possible, will often result in delays in, or failure of, a patient to obtain proper care.”

A federal court granted a preliminary injunction, but the Supreme Court allowed the rule to go into effect in 1991. In a 5–4 vote in Rust v. Sullivan, the court held that the rule did not constitute censorship. “This is not a case of the government ‘suppressing a dangerous idea,’ but of a prohibition on a project grantee or its employees from engaging in activities outside of its scope,” the opinion read. “The regulations do not violate the First Amendment free speech rights…since the government may make a value judgment favoring childbirth over abortion, and implement that judgment by the allocation of public funds. In so doing, the government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another.” The opinion also noted that “the government has no constitutional duty to subsidize an activity merely because it is constitutionally protected.”

Justice Harry Blackmun, who wrote the court’s opinion in Roe v. Wade, wrote a dissent joined by three other justices. “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,” he wrote, accusing the architects of the rule of deliberately “manipulating [a woman’s] decision as to the continuance of her pregnancy.”

By the time the Supreme Court handed down its opinion on the domestic gag rule, George H.W. Bush was president. Large majorities of both the House and Senate voted to axe the rule, but Bush vetoed the bill. A vote to override the veto failed by 10 votes in the House. Still, the rule never fully went into effect, due to court challenges and the election of Bill Clinton, who suspended and then voided the rule.

Like the Hyde Amendment—the law that keeps women on Medicaid from using their health insurance to cover abortion care—both the global and domestic gag rules place the burden of anti-abortion politics on poor women’s health. Since Supreme Court precedent prevents conservatives from banning abortion outright, they’re exerting control over the only bodies they can: those that get their health care with the help of public-health funding. There is no way to cut Planned Parenthood and other abortion providers out of the Title X program, or force them to contort their buildings, staffing, and finances to accommodate this new rule, without interrupting the health care services of women most at risk for unplanned pregnancies and gynecological health crises.

If Planned Parenthood loses or experiences a gap in its Title X funding, the 41 percent of Title X patients who get reproductive health services there will see lapses in their care. Some will miss months of contraception, while others will delay cancer and STI screenings. The federally qualified health clinics that will maintain their Title X funding are ill-equipped to take on a sudden load of new family-planning clients; quality of care will decline for their new and existing patients alike. Many people who rely on Planned Parenthood for Title X–funded services live in rural areas and underserved communities where there are no other nearby options for low-cost health care services. The domestic gag rule could make medical care inconvenient or impossible to access for these hundreds of thousands of patients.

The federal government should not be in the business of making health care more difficult to access for those who already experience worse health outcomes than their wealthier peers. The domestic gag rule furthers constrains low-income Americans to one set of health care options, while middle-class and wealthy Americans get another. If a poor woman’s Title X provider opts to continue receiving federal dollars, her doctor won’t be able to give her the same information about her pregnancy options as a woman with privately-funded contraception. Alternatively, if her Title X provider opts out of federal dollars, it may be forced to close or limit services. In Chief Justice William Rehnquist’s opinion in Rust v. Sullivan, the Supreme Court described the reproductive health care plight of the low-income woman thus: “The fact that most Title X clients may be effectively precluded by indigency from seeing a health care provider for abortion-related services does not affect the [court’s decision] here, since the financial constraints on such a woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions, but of her indigency.”

This is a chilling abdication of the social contract. Freedom of choice is no freedom at all if the law blocks certain women from getting comprehensive medical information from their doctors. And what is to blame, if not governmental restrictions, for the unplanned, unwanted pregnancies that will undoubtedly result from the lapses in contraceptive care this rule will create? “It is my view that no American woman should be denied access to family planning assistance because of her economic condition,” Nixon wrote in 1969, the year before he signed Title X into law. Republicans once saw subsidized contraception as a method of reducing incidences of abortion. Now, it’s a pawn in a political war where poor women’s bodies bear the consequences.