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Charlotte Lozier Institute

Phone: 202-223-8073
Fax: 571-312-0544

2776 S. Arlington Mill Dr.
#803
Arlington, VA 22206

AbortionLife & the Law

The Protect Life Rule: Defunding Abortion in Title X

This is Issue 106 of the On Point Series. 

Executive Summary

  • Established in 1970 to support “voluntary family planning projects,”[1] the Title X family planning program prohibited grant recipients from using funds for programs that involve abortion as a method of family planning.[2]
  • The abortion industry’s political power has enabled Planned Parenthood and other abortion businesses to increase their revenue through Title X grants. This is despite Planned Parenthood’s long, evidenced history of harming women and girls at their centers as well as several scandals concerning minors, breaking state and federal laws, the trafficking of fetal tissue from aborted babies, and more.
  • With the Protect Life Rule, President Trump’s first administration honored Title X’s text and original intent by ensuring that Title X projects were kept separate from abortion activities.
  • Upon his election, President Biden promptly capitulated to the abortion industry, rescinding the Protect Life Rule and again permitting abortion businesses to flout Title X’s prohibition on abortion as family planning.
  •  President Trump can reinstate the Protect Life Rule and avert threats to Title X during his second term. But a bill that explicitly amends Title X to prohibit abortion referrals in Title X projects and requires strict separation between the projects and abortion businesses would avert threats to this federal program by future administrations.

 

Background

For decades, abortion advocates have tried, sometimes successfully, to use federal tax dollars that are appropriated for healthcare to pay for and promote abortion. To prevent or stop this abuse, pro-life lawmakers write laws and regulations to safeguard the integrity of life-affirming healthcare programs by prohibiting federal funding for abortion or the promotion of abortion. The statute authorizing the Title X family planning program prohibits the use of taxpayer funding for abortion, stating, “None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.”[3] Yet, pro-abortion administrations have wrongfully interpreted this language narrowly, permitting abortion providers, including Planned Parenthood, to receive Title X grants without any meaningful separation between their family planning projects and abortion businesses.

In March 2019, the Trump Administration promulgated a Final Rule, similar to the 1988 Reagan-era regulations that were upheld by the United States Supreme Court in Rust v. Sullivan,[4] to direct Title X funds to life-affirming projects, not the abortion industry.[5] The “Protect Life Rule” provided that a counselor in a Title X project could “neither refer[] for, nor encourage[], abortion.”[6] Further Title X projects were required to be “physically and financially separate … from activities that are prohibited under” the Title X statute and regulations.[7] In other words, Title X funds cannot be used to fund an abortion business.

Despite the Protect Life Rule’s similarity to the Rule upheld in 1991 by the U.S. Supreme Court in Rust, the Ninth[8] and Fourth[9] Circuit Courts of Appeals reached different conclusions about the validity of the Rule, with the Ninth Circuit upholding the Protect Life Rule and the Fourth Circuit enjoining it. This “circuit split” led the United States Supreme Court to grant review of whether the Rule falls within the Department of Health and Human Service’s statutory authority and was the product of reasoned decision making.[10] However, on May 17, 2021, the Court dismissed the case[11] after receiving the Biden Administration’s assurance that it would continue to enforce the Protect Life Rule until it finalized its new Rule that would again wrongfully permit abortion referrals and remove the requirement for grant recipients to separate Title X projects from abortion businesses.[12]

The Protect Life Rule under Loper Bright v. Raimondo

If the new Trump Administration promulgates a Rule modeled after the 2019 Rule, it will likely be challenged again and will likely be reviewed by the United States Supreme Court. In 2024, the Court decided Loper Bright v. Raimondo, overturning Chevron v. NRDC,[13] and holding that courts are required to exercise independent judgment in deciding whether an agency has acted within its statutory authority.[14] However, the Court did not overturn other cases that, like Rust, had applied Chevron in the past.[15] Therefore, the Supreme Court’s 1991 decision in Rust and the Ninth and Fourth Circuits’ 2020 decisions reviewing the Protect Life Rule in California v. Azar and Mayor of Baltimore v. Azar, respectively, are still valid. Further, even without Chevron analysis, these courts would have likely reached the same conclusions that they reached before Loper Bright.

The Supreme Court in Rust held:

The broad language of Title X plainly allows the Secretary’s construction of the statute. By its own terms, § 1008 prohibits the use of Title X funds ‘in programs where abortion is a method of family planning.’ Title X does not define the term ‘method of family planning,’ nor does it  enumerate what types of medical and counseling services are entitled to Title X funding. Based on the broad directives provided by Congress in Title X in general and § 1008 in particular, we are unable to say that the Secretary’s construction of the prohibition in § 1008 to require a ban on counseling, referral, and advocacy within the title X project is impermissible.[16]

Note, the Court in Rust did not state that it would have reached a different conclusion in the absence of Chevron. Rather, the Court emphasized that abortion is explicitly excluded from family planning by the Title X statute. In fact, the Court relied upon agency expertise as an interpretive tool out of necessity: “When we find, as we do here, that the legislative history is ambiguous and unenlightening on the matters with respect to which the regulations deal, we customarily defer to the expertise of the agency.”[17] Further, when the Court evaluated the Secretary’s justifications for changing the regulations, including “critical reports of the General Accounting Office (GAO) and the Office of the Inspector General (OIG)” and “that the new regulations are more in keeping with the original intent of the statute, are justified by client experience under the prior policy, and are supported by a shift in attitude against the ‘elimination of unborn children by abortion,’” the Court characterized these factors as a “reasoned analysis.”[18]

The Court likewise agreed that “the program integrity requirements are based on a permissible construction of the statute and are not inconsistent with Congressional intent.”[19] The Court wrote that “[t]he Secretary based the need for the separation requirements ‘squarely on the congressional intent that abortion not be a part of a Title X funded program.’ 52 Fed. Reg. 33212 (1987). Indeed, if one thing is clear from the legislative history, it is that Congress intended that Title X funds be kept separate and distinct from abortion-related activities.”[20] In other words, in upholding the 1988 Rule, the Supreme Court was not promoting “policy preferences that had not made it into the statute;”[21] rather, using the interpretive tools available to the Court, the Court determined that the 1988 Rule was based on a reasonable construction of the statute.

When considering challenges to the Protect Life Rule in 2020, the Ninth and Fourth Circuit Courts of Appeals also exercised judgment that was independent from agency interpretations of Title X. Most importantly, in California v. Azar where the Ninth Circuit held that the Protect Life Rule was valid, the court did not rely upon HHS’s interpretation of Title X without conducting an independent review. The Ninth Circuit reviewed both the Supreme Court’s decision in Rust and “HHS’s interpretations of § 1008 [that] had seesawed through multiple formulations,” creating an “uncertain history” that culminated in the 2019 Protect Life Rule which “largely represents a return to the 1988 Rule that the Supreme Court upheld in Rust.”[22] The Ninth Circuit then “resolve[d] the legal issues [in California] on their merits.”[23] The court held that the plaintiffs failed to “provide evidence that Congress [in subsequent laws] intended to alter Rust’s conclusion that the 1988 Rule was a permissible interpretation of Title X and § 1008.” While the court acknowledged giving “‘substantial deference’ to the interpretations provided by HHS,”[24] the court then conducted its own extensive examination of HHS’s interpretations.[25]

Next, the court addressed the plaintiffs’ claim that several provisions of the Protect Life rule are arbitrary or capricious. Again, the court extensively examined each provision and determined that the Protect Life Rule “is not arbitrary and capricious because HHS properly examined the relevant considerations and gave reasonable explanations.”[26] Throughout the opinion in California the Ninth Circuit examined HHS’s reasoning and utilized “traditional tools of statutory construction,”[27] including HHS’s interpretation of Title X. The court did not blindly defer to HHS and based on the opinion, would likely reach the same conclusions post-Loper Bright.[28]

Abortion Businesses and Title X Funding

When the Protect Life Rule went into effect in 2019, abortion centers and entities that refer for abortions, including Planned Parenthood, chose to forgo Title X funding rather than separate Title X projects from their abortion businesses. According to the Kaiser Family Foundation, 411 Planned Parenthood sites and 869 other Title X sites left the program between June 2019 and August 2021, mostly in states with laws that promote abortion.[29] However, during that same time, 2,730 Title X sites chose patient care over abortion promotion and remained in the Title X network.[30] Further, new grantees that were willing to comply with the mission of Title X were able to join.

It is not surprising that Planned Parenthood chooses abortion over healthcare. Planned Parenthood sites performed 392,715 abortions in 2021-22, “an increase of over 18,000 (5%) from the previous year, and an increase of 20% over the past 10 reports.”[31] Yet, since 2010, Planned Parenthood’s total services are down 17%, and contraceptive services are down 39% even with public funding.[32] An examination of Planned Parenthood’s annual reports for 1995 to 2014—years when HHS did not require Title X projects to be physically and financially separate from abortion—reveals how integral abortion is to Planned Parenthood. While abortions performed at  non-Planned Parenthood centers decreased by more than 50% during those years, Planned Parenthood abortions increased 142%, growing Planned Parenthood’s market share of abortions from 10% in 1995 to 35% in 2014.[33] Clearly, an organization that produces such a “long-term and accelerating inflationary effect on the incidence and prevalence of abortion in the US”[34] should not receive federal tax dollars that are authorized to help patients to achieve pregnancy only when they desire it, not to end existing pregnancies.

While Planned Parenthood’s use of Title X funding to support their abortion business should be a sufficient reason to remove their centers from the Title X program, there are numerous other reasons why Planned Parenthood should not receive any taxpayer funding. Planned Parenthood affiliates across the country have been repeatedly investigated for their alleged refusal to comply with laws that protect unborn children and their mothers, even teenage mothers. The Attorney General of Missouri is presently suing Planned Parenthood for allegedly removing minors from school and transporting them across state lines to obtain abortions “every day,” in direct violation of the state’s parental consent law.[35] This unlawful and deeply troubling allegation, supported by video evidence, is consistent with Planned Parenthood’s history in Missouri, where one facility “was shut down in 2018 after staff admitted to using moldy abortion equipment on women for months.”[36] Planned Parenthood also failed to file complication reports that were required by Missouri law for years.[37] For instance, a former medical director at Planned Parenthood in St. Louis “admitted in a deposition that—for 15 years—he and other abortionists at Planned Parenthood in Missouri refused to file these reports even though they knew about the state law requiring the reports.”[38]

This is not just a problem in Missouri. In the 2018 report Unsafe, Americans United for Life collected evidence “from 32 states on hundreds of abortion businesses (including Planned Parenthood abortion centers) and individual abortionists” over eight years beginning in 2008.[39] The report listed: “[a]t least 13 abortion facilities in at least 6 states” that “either failed to report suspected sexual abuse of a minor or failed to implement practices to protect minors from ongoing sexual abuse;” “[a]t least 30 abortion facilities in at least 8 states” that “failed to provide or post all required informed consent information;” and “[m]ore than two dozen abortion facilities in at least 11 states” that “failed to comply with abortion reporting requirements.”[40]

The report further documented “the most common health and safety violations in American abortion facilities” including Planned Parenthood centers. These included: “Failure to Ensure a Safe and Sanitary Environment”; “Failure to Accurately Document Patient Records and Keep Patient Medical Information Confidential”; “Failure to Ensure Staff Are Properly Trained for Duties”; “Unlicensed/Unqualified/Untrained Staff Providing Patient Care”; “Expired Medications and Medical Supplies”; “Failure to Purchase and Maintain Required Equipment”; “Failure to Adopt, Follow, and/or Periodically Review Health and Safety Protocols”; “Failure to Properly Handle Medications”; “Failure to Comply with Physical Plant Standards”; and “Failure to Monitor Patient Vital Signs.” [41]

AUL’s more recent Unsafe report from 2021 likewise reviewed “over 1,300 abortion facility inspection reports from the 39 states that conduct inspections of abortion businesses.”[42] It also summarized a 2019 verdict against Planned Parenthood Arizona in a case where a former Planned Parenthood staff member was fired for reporting an abortionist whose patients were experiencing “significant post-abortive complications such as extensive bleeding and several instances of perforated uteruses diagnosed by emergency room doctors.”[43] The report also lists multiple Planned Parenthood centers across Alabama, Kansas, Pennsylvania, and Virginia that failed to report suspected sexual abuse of a minor or failed to implement practices to protect minors from continuing sexual abuse, according to documentation by state officials.[44] Planned Parenthood also regularly sues states, seeking to enjoin laws written to protect women considering abortion.[45]

Planned Parenthood has been implicated in alleged federal law breaking as well, most notoriously violating laws that prohibit the commodification of aborted babies’ bodies. The 2015 investigations by the Center for Medical Progress[46] showed Planned Parenthood staff, including executives, discussing abortions with investigators they believed were shopping for aborted baby body parts for research.[47] In a report released in 2016, the U.S. House of Representatives Select Investigative Panel of the Energy and Commerce Committee made numerous findings that Planned Parenthood broke federal laws and the organization’s own internal guidelines. First, Planned Parenthood clinics “have a checkered history of overbilling Medicaid and of improperly billing items to cover the costs of abortion services, in violation of the Hyde Amendment.” Also, “[a]ccounting documents from middleman tissue organizations showed that several PPFA [Planned Parenthood Federation of America, Inc.] affiliates made a profit from the transfer of fetal tissue” in violation of federal law (42 U.S.C. 274e and 42 U.S.C. 289g-1 and 2). The PPFA executive charged with ensuring that doctors who perform abortions certify that they did not change the method of abortion to “facilitate tissue donation” admitted that “she regularly changed the method of abortion to facilitate intact fetal specimens and further admitted that she had never certified that the method of abortion was not altered,” violating Planned Parenthood’s internal guidelines. Next, the PPFA “guidance on patient consent and the affiliate practice violates federal consent regulations.” Finally, “affiliate clinics routinely violated HIPAA privacy regulations to facilitate the harvesting of fetal tissue for which the clinics were paid on a per specimen basis.”[48]

Planned Parenthood has demonstrated time and again that its primary focus is the abortion business, and its affiliates have at times been willing to break federal and state law and their own internal guidelines to improve their bottom line. There should be no place for Planned Parenthood in Title X or any other federal healthcare program.

Conclusion

The Title X family planning program, established in 1970 to support “voluntary family planning projects,” was explicitly written to exclude abortion. Yet today, Planned Parenthood and other abortion centers use these funds to support their abortion businesses. Given Planned Parenthood’s long, evidenced history of breaking laws written to protect women and girls considering abortion, the Protect Life Rule is needed to both protect women and their unborn children and honor Title X’s text and original intent by ensuring that Title X projects are kept separate from abortion activities. Further, if Congress wanted to prevent future administrations from rescinding the rule, it could send President Trump a bill amending Title X to explicitly prohibit abortion referrals in Title X projects and require a strict separation between the projects and abortion businesses.

 

Mary Harned, J.D. is an associate scholar with the Charlotte Lozier Institute.


[1] 42 U.S.C. § 300.

[2] 42 U.S.C. § 300a-6.

[3] 42 U.S.C. § 300a-6.

[4] 500 U.S. 173 (1991).

[5] Compliance with Statutory Program Integrity Requirements, 84 Fed. Reg. 7714, 7723 (Mar. 4, 2019).

[6] 42 C.F.R. § 59.14(e)(5).

[7] 42 C.F.R. § 59.15.

[8] California v. Azar, 950 F.3d 1067 (9th 2020).

[9] Mayor of Baltimore v. Azar, 973 F.3d 258, 296 (4th 2020).

[10] https://www.supremecourt.gov/qp/20-00454qp.pdf.

[11] https://www.supremecourt.gov/orders/courtorders/051721zor_6537.pdf.

[12] The Biden rule was finalized on October 4, 2021. https://opa.hhs.gov/2021TitleXRule.

[13] 467 U.S. 837 (1984).

[14] 144 S. Ct. 2244, 603 U.S. _____ (2024).

[15] 144 S. Ct. at 2273. “We do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful … are still subject to statutory stare decisis despite our change in interpretive methodology.”

[16] 500 U.S. at 184 (emphasis added).

[17] Id. at 186.

[18] Id at 187.

[19] Id. at 188.

[20] Id. at 190 (emphasis added).

[21] See 144 S. Ct. at 2268, citing 1 Works of James Wilson 363 (J. Andrews Ed. 1896).

[22] 950 F.3d at 1079-80.

[23] Id. at 1084.

[24] Id. at 1085, citing Chevron, 467 U.S. at 843 and Rust, 500 U.S. at 184.

[25] See id. at 1086-95.

[26] See id. at 1097-1105.

[27] See 467 U.S. 837 (1984), fn. 9.

[28] While the Fourth Circuit in Mayor of Baltimore v. Azar (2020) reached the opposite conclusion from the Ninth Circuit and upheld a lower court’s injunction of the Protect Life Rule, creating a circuit split that led the Supreme Court to grant review, the Fourth Circuit’s injunction only applied in the State of Maryland. While the Fourth Circuit applied Chevron “step two” analysis, the court would likely have reached the same conclusion post-Loper Bright, especially given that the court’s decision did not defer to HHS.

[29] Brittni Frederiksen, Ivette Gomez, & Alina Salganicoff, Rebuilding the Title X Network Under the Biden Administration, KFF, https://www.kff.org/womens-health-policy/issue-brief/rebuilding-the-title-x-network-under-the-biden-administration/.

[30] Id.

[31] Fact Sheet: Planned Parenthood’s 2022-23 Annual Report, citing Planned Parenthood 2022-23 Annual Report, p. 24 and Planned Parenthood annual reports, 2013-14 through 2022-23, https://lozierinstitute.org/fact-sheet-planned-parenthoods-2022-23-annual-report/.

[32] Fact Sheet, supra, citing Planned Parenthood annual reports, 2010 through 2022-23.

[33] Studnicki, J. and Fisher, J.W. (2018) Planned Parenthood: Supply Induced Demand for Abortion in the US. Open Journal of Preventive Medicine, 8, 142-145.

[34] Id. at 142.

[35] Attorney General Bailey Issues Statement After Court Rules His Case Against Planned Parenthood Will Move Forward, https://ago.mo.gov/attorney-general-bailey-issues-statement-after-court-rules-his-case-against-planned-parenthood-will-move-forward/.

[36] State of Missouri’s Petition for Declaratory Judgment and Injunctive Relief at 5, Missouri v. Planned Parenthood Great Plains (Cir. Ct. of Boone County, Thirteen Judicial Cir., State of MO. Feb. 29, 2024), https://ago.mo.gov/wp-content/uploads/2024-2-29-Missouri-v.-Planned-Parenthood-Petition-for-Injunctive-Relief.pdf.

[37] Id. at 9.

[38] Id.

[39] Unsafe: America’s Abortion Industry Endangers Women, Americans United for Life (2018), https://aul.org/wp-content/uploads/2019/12/AUL-Unsafe-2018.pdf.

[40] Id. at 82-88.

[41] Id. at 16.

[42] Unsafe: America’s Abortion Industry Endangers Women, Americans United for Life (2021). https://aul.org/wp-content/uploads/2021/02/AUL-Unsafe-2021.pdf.

[43] Id. at 32-33.

[44] Id. at 181 (“Enabling Abusers”).

[45] See, e.g., id. at 102.

[46] Investigative Footage, The Center for Medical Progress, https://www.centerformedicalprogress.org/cmp/investigative-footage/.

[47] Use of Aborted Fetal Tissue: Questions & Answers, Charlotte Lozier Institute (June 5, 2019), https://lozierinstitute.org/use-of-aborted-fetal-tissue-questions-answers/.

[48] U.S. House of Representatives, Final Report, Select Investigative Panel of the Energy & Commerce Committee, December 30, 2016, at 371-434, https://lifelegal.org/wp-content/uploads/2020/01/Select_Investigative_Panel_Final_Report.pdf.

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