Another thing that Donald Trump has ruined is the pleasure in
saying “I told you so.” The implications
of being right these days are pretty horrific.
I’d been managing to stay fairly upbeat, mostly because Balkin keeps
telling us that a progressive backlash is coming our way (while also
acknowledging that the odds of his being correct are maybe 50-50 if we’re lucky). But it’s getter harder and harder, especially
for those of us in the reproductive health field.
Forget abortion for a minute. Readers of this blog know well that the abortion
rights outlook in the short term is pretty bleak, unless stare decisis, so called “institutional legitimacy,” and, relatedly,
public opinion matter to the Chief. Of
course, things could change again with the election, one way or the other.
But abortion is relevant here now as a distraction. Trump and his minions are masters of distraction after all. We also have to worry
seriously about access to contraception. I’m hardly the first to warn that anti-abortion
folks are really also coming for your contraception, nor the first to argue
that conservatives hide their attacks on contraception in abortion conflicts. See, e.g., Smith, Contraceptive Comstockery. But when the 9th circuit (yeah
exactly, the 9th circuit, may it rest in peace) writes an opinion that
would result in the elimination of access to contraceptive services for
millions of low-income women while including the word “contraceptive” once but
the word “abortion” 60 times, it’s time to sit up and take notice. In a per curiam opinion issued by Judges
Leavey, Callahan, and Bea, the Ninth Circuit just today ordered a stay on preliminary
injunctions granted against enforcement of new regulations (gag rule/separation requirements) governing Title X. See
State of California v. Azar, http://cdn.ca9.uscourts.gov/datastore/general/2019/06/20/19-15974%20
Order%20granting%20stay.pdf.
Order%20granting%20stay.pdf.
Under the
guise of requiring the separation already required between Title X program
services and abortion services, the Final Rule that is the subject of the 9th
Cir. stay order undermines the equality promise of Title X itself and threatens
access to medically accepted vital contraceptive services, allowing the funds
to be redirected to those who do not provide contraception but counsel only
abstinence or the so-called rhythm method.
See Sarah Varney, ‘Contraception
deserts’ likely to widen under new Trump administration policy (Sept. 28,
2018), https://abcnews.go.com/amp/Health/contraception-deserts-widen-trump-administration-policy/story?id=58151312 (Obria medical
clinics do not provide contraception beyond so-called “natural family planning
methods”); Kenneth P. Vogel and Robert Pear, Trump Administration Gives Family Planning Grant to Anti-Abortion Group,
N.Y. Times, Mar. 29, 2019 (Title X
grant awarded to The Obria Group). Another attempt to limit contraceptive
access, the lawsuits filed to undermine the ACA’s contraceptive mandate, also
hid behind the specter of abortion. But both projects have the same target–-contraception.
A bipartisan Congress supported by President Nixon enacted Title X in 1970 to equalize access to voluntary family planning services, giving low-income women the ability to exercise control over their reproductive functions, and thereby their economic lives and health, by offering federally funded access to effective contraception and reproductive health care already available to wealthier women. And let’s be clear that Title X has been
an enormous success, including in reducing abortions. For example, in 2015, the most recent year
for which these numbers are available, the contraceptive care delivered by
Title X-supported providers helped women avoid an estimated 822,000 unintended
pregnancies, which would have resulted in an estimated 387,000 births and
278,000 abortions.[i],[ii] Without the contraceptive care provided
by these Title X-funded health centers that year, the U.S. rates of unintended
pregnancy and abortion would have been 31% higher, and the adolescent
unintended pregnancy rate would have been 44% higher.[iii]
Now
you may be thinking, weren’t these gag rule regs upheld in Rust v. Sullivan, 501 U.S. 173 (1991)? And you aren’t wrong that a 1988 version of
the rules was upheld in 1991 against a First Amendment challenge and a claim
that the rules at that time were arbitrary and capricious. But the landscape
has changed significantly in the last twenty-seven years, as the four trial courts
granting preliminary injunctions against enforcement of the new Rule recognized. See California v. Azar, No.
19-CV-01184-EMC, 2019 WL 2029066 (N.D. Cal. May 8, 2019) (Chen, J.); Washington
v. Azar, No. 1:19-cv-03040-SAB (E.D. Wash. June 3, 2019) (Bastian, J.), http://bit.ly/2KXgqZa; Oregon v. Azar,
6:19-cv-00317-MC (D. Or. May 6, 2019), Dkt. 152 (McShane, J.) (minute entry
summarily denying motion); Baltimore v.
Azar, No. 19-1103 (D. Md. May 30, 2019) (Bennett, J.). (For full disclosure,
I am one of plaintiff’s counsel in the Baltimore case).
The APA claims here are really strong folks; crazy strong. First of all, two specific statutory
provisions, one included in every appropriations bill starting in 1996 and the
other adopted as part of the ACA in 2010, mandate that pregnancy counseling be
nondirective, see, e.g., Continuing Appropriations
Act, 2019, Pub.L. 115-245, 132 Stat. 2981, 3070-71 (2018); see also 65 Fed. Reg.
41,272-73, and prevent the promulgation of any regulation that, among other
things, “interferes with communications regarding a full range of treatment
options between the patient and provider” and “restricts the ability of health
care providers to provide full disclosure of all relevant information to
patients making health care decisions.” See U.S.C. § 18114.
Moreover, throughout the almost fifty-year history of the Title X program, nondirective full options counseling has been not only the norm, but required. The 1988 regulations were never implemented
because in 1991 George H.W. Bush issued a directive essentially rescinding the regs
and acknowledging that the gag rule violated medical ethics, an
action made official in 1993. In 2000, HHS issued new regulations that officially
revoked the 1988 regulations; required “neutral, factual information and
nondirective counseling” on all options for pregnant patients, including “pregnancy
termination”; and required that non-Title X abortion activities must be ‘separate
and distinct’ from Title X activities, but allowing some shared facilities.
Of
course, if your agenda was really just about preventing or at least reducing
abortions, the last thing you’d do would be to limit contraceptive access. No this limit on contraception is just
that; sex is for procreative purposes only. A woman who has sex with a man must be willing to accept the possible consequences, no matter her situation, no matter her health, no matter that safe medical treatments are available to allow her to maintain her autonomy, to help her achieve equality in this society that still fights against it. It doesn't get much more regressive than that. Well, that's what we used to think. What's next?
But it'll be okay. The progressive backlash is coming!! Right Jack??
[i] Frost JJ, et
al., Publicly Funded Contraceptive
Services at U.S. Clinics, 2015,
New York: Guttmacher Institute, 2017,
https://www.guttmacher.org/report/publicly-funded-contraceptive-services-us-clinics-2015.
[ii] The numbers of
pregnancies, births and abortions prevented by contraceptive services provided
by Title X-supported sites are derived by first estimating the number of
pregnancies that would occur over one year among women using the mix of
contraceptive methods found among all patients receiving contraceptive care.
This is compared to the number of pregnancies that would occur among a
hypothetical group of similar women who do not have access to publicly funded
services. This methodology relies on updated information on contraceptive
failure rates for different methods, use of national survey data to construct
the hypothetical cohort, and a number of adjustments that align the results
with actual numbers of pregnancies occurring to women using contraceptive
methods. For more detailed methodology, see:
Frost JJ et al., Contraceptive
Needs and Services, 2010: Methodological Appendix, New York: Guttmacher
Institute, 2013,
https://www.guttmacher.org/sites/default/files/report_downloads/contraceptive-needs-methodology_0.pdf; Frost JJ et al., Return on investment: a
fuller assessment of the benefits and cost savings of the US publicly funded
family planning program, Milbank
Quarterly, 2014, 92(4):667–720,
https://onlinelibrary.wiley.com/doi/epdf/10.1111/1468-0009.12080.
[iii] Frost JJ, et
al., Publicly Funded Contraceptive
Services at U.S. Clinics, 2015,
New York: Guttmacher Institute, 2017,
https://www.guttmacher.org/report/publicly-funded-contraceptive-services-us-clinics-2015.