One of the anti-abortion movement’s biggest victories in the past decade or so is a cultural one, though with legislative underpinnings: it has cast a medical procedure that is safe and legal as one that is sketchy and shameful, something for the dark back alleys of our imaginations to reclaim. Abortion has been legal since 1973, and as many as one out of four American women have had one. Yet, as the legal scholar Carol Sanger writes, in her 2017 book “About Abortion,” “much of current abortion regulation operates to punish women for their decision to terminate a pregnancy.” If state legislatures cannot enact an outright ban, they can—through laws that compel women who are seeking abortions to look at ultrasounds of the embryo or fetus, or to receive misleading counselling during mandated waiting periods—render the procedure onerous and the women who seek it suspect. They can treat it more like a crime, and hope that, eventually, the Supreme Court will see it that way, too.
The new Trump Administration rule governing Title X, the federal program that funds birth control and other reproductive-health services for low-income women, is very much in this spirit. Since its enactment, in 1970, under the Nixon Administration, Title X has specified that federal funding cannot be used for abortions. At the same time, the Title X statute required that health-care providers inform a woman, through “non-directive” counselling, about the full range of her options, including prenatal care, childbirth, adoption, and pregnancy termination, and offer referrals for abortion providers upon request. Moreover, some of the clinics that use Title X funds to offer women various reproductive-health services—cancer screenings, birth control, S.T.D. tests, and so on—also provide abortions in the same facility, without Title X funding.
Under the new rule, which will be enforced starting September 18th, health-care providers that receive Title X funding will not be allowed to refer patients to abortion providers, even when patients request such referrals. A Health and Human Services Department announcement makes a point of saying that this is not a “gag rule,” because health-care workers can still mention abortion as part of their comprehensive pregnancy counselling (though they are no longer required to). Call it what you will—interference with what a doctor or nurse can tell a patient about how and where to access care is a very real limitation, making the experience harder for the patient and marking the procedure in question as not quite legitimate. (It might be available somewhere, but I’m not saying.) The new rules twist themselves into knots with a concession that Title X clinics may give patients a list of providers that offer comprehensive care, as long as a majority of those providers do not perform abortions, and the list does not indicate who actually does. In a statement for an unsuccessful lawsuit that sought an injunction on the new rule, J. Elisabeth Kruse, an advanced registered nurse practitioner with the Public Health Department in Seattle and King County, explained that, without assistance or referrals, many of the Title X patients would struggle to find help ending an unwanted pregnancy. These included patients from immigrant or refugee communities (who might not know under what circumstances abortion is legal in the United States), adolescents, and patients who are homeless, mentally ill, or illiterate.
Last week, Planned Parenthood, which serves forty per cent of Title X patients and, in some states, is the main or the only provider under the program, announced that it would stop taking the federal funds rather than comply with the new rule. Planned Parenthood’s acting president and C.E.O., Alexis McGill Johnson, explained the decision this way: “When you have an unethical rule that will limit what providers can tell our patients, it becomes really important that we not agree to be in the program.” Several Democratic governors, including those of Hawaii, New York, and Oregon, have said that their states would now refuse Title X funds, as well.
The restrictions on abortion counselling have received most of the attention, but there is an aspect of the new rules that is potentially even more burdensome. That is the stipulation that Title X services be kept physically and financially separate from non-Title X services—which would now include both abortion and abortion referrals. In many cases, this would mean somehow maintaining two different facilities on the same budget. Mary Ziegler, a legal historian at Florida State University who studies abortion law and politics, told me that this requirement raised significant financial and logistical barriers, especially for small community clinics. “For Planned Parenthood, maybe it would have been possible—but expensive—to retrofit,” she said. “For smaller providers, it might be literally impossible.”
In a statement for the lawsuit against the rules, Heather Maisen, the manager of the Public-Health Seattle & King County Family Planning program, described some of the ways the new rule would undermine her department’s work. It currently has four health centers based in high schools, for example, where the “separation requirement would be impossible to implement” because “the clinicians in those centers provide a full range of non-family planning care in addition to family planning services.” The rules would require her department to “create two physically separate, duplicative health centers per school campus: one for the provision of Title X care, and one for the provision of other, general health care services as well as neutral abortion information and referral.”
Making it more difficult for clinics to provide low-income women with a full range of reproductive-health services is not the only purpose of the rules, though. Another is to create an opening for anti-abortion pregnancy crisis centers and faith-based groups to receive federal funding. By eliminating the requirement that health-care providers who receive Title X funding offer counsel about abortion, it “ensures conscience protections,” as an H.H.S. fact sheet describes it.
The new rules will deny women health care they need, and they will also—and this is no accident—further stigmatize abortion. Part of the goal of regulation like this is to underscore a government preference for childbirth. And part of the work it may do is to help create a world in which forcing that preference on women is more and more acceptable.
