New HHS Title X Rule Challenged

The U.S. Department of Health and Human Services (HHS) Office of Population Affairs recently issued a final rule governing the Title X Family Planning program.  The new rule will become effective 60 days after it is published in the Federal Register (which has not yet happened).  The Title X program was established in 1970 (see Pub. L. No. 91-572, § 6(c), 84 Stat. 1506), and authorized the HHS Secretary “to make grants to and enter into contracts with public or nonprofit entities to assist in the establishment and operation of voluntary family planning projects.”  From its beginning, “none of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.”  The new rule “provides for clear financial and physical separation between Title X and non-Title X activities…,” “removes the requirement for abortion referral…,” and “no longer requires nondirective pregnancy counseling” including such counseling on abortion.  [See 2/22/19 Fact Sheet: Final Title X Rule Detailing Family Planning Grant Program.]  Critics of the new rule say it amounts to a “gag rule,” preventing physicians from informing patients that a prenatal care facility also provides abortion services.  Yesterday, the Washington state Attorney General announced a lawsuit challenging the new rule, stating it “permits Title X providers to withhold information from patients about their healthcare options, bars them from referring patients for abortion care, and requires Title X clinics to physically separate abortion care and referrals from their services funded by Title X.”  The Washington branch of the ACLU also plans to file a lawsuit, and the two cases will likely be consolidated in the Eastern District of Washington.