Proposed regulatory changes threaten women’s right to effective contraception

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Officials in the Office of Population Affairs in the U.S. Department of Health and Human Services have proposed changes under Title X, a program that provides grants to public or nonprofit entities providing family planning methods and services to low-income persons.[1]  These changes require recipients to provide information to patients about only unreliable methods of contraception.  It also permits recipient to keep information secret about more effective contraception methods and a constitutionally protected right.  The net result is likely higher taxes to pay for more people living in poverty.

  1. Proposed Changes to Title X

First, the changes require providers to tell women about only natural methods of birth control.[2]  Natural methods, also called fertility awareness-based methods, are the least effective method of birth control, resulting in 25 pregnancies out of 100 women in the first year.[3]  In contrast, implants and IUDs results in less than 1 pregnancy per year.[4]  Providers may, but are not required to, provide information to patients about more effective methods of contraception.[5]

The proposed changes also pave the way for faith-based organizations to receive Title X funding, noting that “[i]t is important for patients seeking care to feel assured that their faith, and the principles of conscience grounded in their faith, would be honored, especially in the area of family planning.”[6]

Second, to receive Title X funds, a recipient must “encourage[] family participation in the decision of minors to seek family planning services” and must document specific actions taken to accomplish family participation.[7]  Recipients must also counsel every minor “on how to resist attempts to coerce them into engaging in sexual activities.”[8]

The majority of Title X is concerned with the third area, abortion counseling and referral.  The proposed rules stipulate that “[n]one of the funds appropriated under this title shall be used in programs where abortion is a method of family planning”[9]   Defining abortion as a prohibited method of “family planning,” providers may not encourage abortion “in any way” or refer a patient to an abortion facility.[10]  A provider would be permitted to supply only “nondirective counseling”[11] on abortion.[12]  Referrals are permitted only if a pregnant patient announces that she has already decided to have an abortion and then only in the form of a list of clinics offering prenatal care and abortions without specifying which facilities provide abortions.[13]

Adding to those restrictions, the proposed changes require that family planning facilities are physically and financially separate from those offering abortions and prohibit the use of Title X funds in promoting abortion or supporting or opposing candidates for public office.[14]

  1. What these changes mean

Under the proposed changes, the number of unwanted pregnancies would rise.  Low-income women seeking birth control must be told only about fertility awareness-based methods of birth control while the other methods may remain secret.  Fertility awareness-based methods are 25% ineffective in preventing pregnancy and are considered unreliable.[15]  So those least able to afford more children are likely to have more children.  This will mean either one of two things:  (1) those women will get abortions, causing the number of abortions to rise; [16] or (2) they will be forced to turn to social service programs, like Medicaid and food stamps, costing taxpayers.

In addition, minors who go to a Title X clinic for birth control will be “encouraged” to include her family in this decision, which means, in most cases, the end of the conversation since most minors would not want their family knowing that they are sexually active.  In lieu of birth control, minors will be instructed on “on how to resist attempts to coerce them into engaging in sexual activities.”  Like natural methods of birth control, encouraging abstention will prove to be less than effective and result in more unwanted pregnancies.

Obtaining an abortion will be harder if these proposed changes are enacted.  Whether you approve of abortion or not, the Supreme Court has determined that abortion is constitutionally protected.[17]  It also ruled that a government could allocate public funds according to its value judgment of childbirth over abortion.[18] But in ruling this way, it also noted that funding childbirth but not abortion “places no governmental obstacle in the path of a woman wishing to terminate her pregnancy.”[19]

But the proposed changes would place governmental obstacles in the abortion path.  First, finding an abortion facility would be more difficult where a recipient cannot refer a patient for an abortion unless she states that she also has already decided to have one.  Even after she makes this statement, the provider is permitted to give her a list of facilities that provide prenatal care and abortions while keeping secret those that provide abortions.

Combine these obstacles with an even greater one – the de-funding of Planned Parenthood centers based on an inability to comply with required financial and physical separation of family planning and abortion facilities. [20]  This would likely result in some Planned Parenthood centers closing with few or no alternative family planning providers nearby.[21]  And because a provider may refer a patient to only those facilities offering both prenatal care and abortions, the number and proximity of facilities would be substantially reduced where abortion clinics (including Planned Parenthood) provide 90% of the abortions today.[22]  This in turn means that the cost of abortion will increase where some providers may not accept Medicaid or be willing to serve uninsured patients.[23]  With the impending closure of Planned Parenthood centers and other abortion clinics, women in rural areas would have to travel greater distances.[24]

So in order to be referred to an abortion facility, a woman has to make an affirmative statement to the Title X provider that she has already decided to have an abortion, then she must call the providers on the list to determine which facilities provide abortions, determine if those providers accept Medicaid or uninsured patients, assess the distance and the cost – then and only if the stars align may that woman get an abortion.  Meanwhile, time is passing, the baby is developing, and the woman’s life may be in danger.  Those are substantial obstacles in the path to abortion and would likely be illegal.

And last, providers working for Title X recipients do not escape unharmed either.  They risk medical liability by referring based on the services provided by a facility rather than on quality of care.[25]  And they are required to withhold information about care, further compromising the quality of that care.[26]  This may cause some providers to leave qualified Title X facilities and make it difficult to recruit others to replace them.

Because only women can get pregnant, regulations about contraception, childbirth, and abortion affect women disparately.  And when they are prevented from getting information about effective contraception and obstacles are placed in their path to get an abortion, those women will have unwanted children.  And low-income mothers are likely to be left to raise those children alone.  The fathers of these children will be unaffected by these changes unless forced into responsibility by legal action or voluntarily assuming it out of the goodness of their hearts.  Women have no such options.

Although an employer’s decision and policies may not affect women disparately,[27] no such restriction is imposed on the federal government.  What is more, regulations are enacted by political appointees, not by those representatives elected to office by the voters.  It is even more important, then, that their actions should be governed by at least those applied to employers.  If that were the case, these regulations would be struck down as discriminatory.  As it is, they are illegal for placing too many obstacles in the way of getting an abortion as well as impractical for allowing more unwanted pregnancies.

The fate of the proposed changes, at this time, is unknown.  The public comment period ended July 31, 2018.  Now we wait to see what the Office of Population Affairs decides about the future of women’s lives.

 

[1] Federal Register, Compliance with Statutory Program Integrity Requirements:  A Proposed Rule by the Health and Human Services Department on 06/01/2018, https://www.federalregister.gov/documents/2018/06/01/2018-11673/compliance-with-statutory-program-integrity-requirements.

[2] Federal Register, Compliance with Statutory Program Integrity Requirements:  A Proposed Rule by the Health and Human Services Department on 06/01/2018, https://www.federalregister.gov/documents/2018/06/01/2018-11673/compliance-with-statutory-program-integrity-requirements, § IV.D.

[3] Natural Family Planning and Fertility Awareness, U.S. Department of Health and Human Services, https://www.hhs.gov/opa/pregnancy-prevention/birth-control-methods/natural-family-planning-and-fertility-awareness/index.html

[4] Natural Family Planning and Fertility Awareness, U.S. Department of Health and Human Services, https://www.hhs.gov/opa/pregnancy-prevention/birth-control-methods/iud/index.html and https://www.hhs.gov/opa/pregnancy-prevention/birth-control-methods/implant/index.html

[5] Id.

[6] Id., § 4.B.

[7] Id., § IV.B.

[8] Id., § IV.K.

[9] Federal Register, Compliance with Statutory Program Integrity Requirements:  A Proposed Rule by the Health and Human Services Department on 06/01/2018, https://www.federalregister.gov/documents/2018/06/01/2018-11673/compliance-with-statutory-program-integrity-requirements.

[10] Id., § II.A.

[11] Nondirective counseling is “the provision of information on all available options without promoting, advocating, or encouraging one option over another.” (quoting Congressional Record (1992, April 30)).

[12] Id., § IV.H.

[13] Id., § IV.H.

[14] Id., §§ II.B. and II.C.

[15] Lauren MacIvor Thompson and Lina-Mari Murillo, The Trump administration’s assault on contraception, The Washington Post, June 18, 2018, https://www.washingtonpost.com/news/made-by-history/wp/2018/06/18/the-trump-administrations-assault-on-contraception/?utm_term=.986bf27d45e2.

[16] Id.

[17] Roe v. Wade, 410 U.S. 113 (1973).

[18] Rust v. Sullivan, 500 U.S. 173, 175 (1991).

[19] Id. at 201.

[20] Kaiser Family Foundation, Proposed Changes to Title X:  Implications for Women and Family Planning Providers, June 28, 2018, updated August 2, 2018, https://www.kff.org/womens-health-policy/issue-brief/proposed-changes-to-title-x-implications-for-women-and-family-planning-providers/.

[21] Id.

[22] Id. at n.11 (citing Jones RK and Jerman J. Abortion Incidence and Service Availability In the United States, 2014. Guttmacher Institute).

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] See Title VII and the Pregnancy Discrimination Act.

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