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Explainer: Ninth Circuit allows HHS rule barring abortion funding to continue

Title X family planning rules being challenged in court could prevent $60 million of taxpayer money from Planned Parenthood

Jul 16, 2019

What just happened?  

On June 20, the 9th Circuit Court of Appeals refused to block the new Health and Human Services (HHS) final rule issued in February. According to HHS, the ruleprohibits the use of Title X funds to perform, promote, refer for, or support abortion as a method of family planning.” It is expected that the new rule will shift funding from abortion providers—such as Planned Parenthood—and steer some of it toward faith-based care providers. HHS Secretary Alex Azar released a statement following the 9th Circuit’s decision to stay a nationwide injunction on the new rule for the Title X family planning program:  

“We are pleased that the Ninth Circuit has recognized that there is no need to hold up the new family planning rules that enforce laws on the books and revert substantially to rules that the Supreme Court upheld decades ago. We are also pleased that the Ninth Circuit agreed that the three preliminary injunctions against the new rules, including two nationwide injunctions, were inappropriate. This decision is a major step toward the Trump Administration being able to ensure that all Title X projects comply with the Title X statute and do not support  abortion as a method of family planning.”  

ERLC president Russell Moore commented on the development,

“Good news out of the 9th Circuit as they reject attempts to block the HHS Title X rule prohibiting the use of family planning funds for abortion services. Not even a penny of taxpayer dollars should support such an industry that devalues human life and exploits families.”  

A final decision from an en banc count is expected in the future, as the Court said that it would “proceed expeditiously to rehear and reconsider the merits of the Appellants’ motions for stay of the district courts’ preliminary injunction orders pending consideration of the appeals on the merits.”  

If the rule remains in effect, Planned Parenthood could lose as much as $60 million in annual funding from the federal government, roughly 10% of the over half a billion in government grants and reimbursements the nation’s largest abortion provider receives each year.   

Joe Carter has previously written about Title X in a previous explainer. Here are a few of the highlights: 

What is the Title X funding program?

Title X or Title X Family Planning is the common name for Public Law 91-572—the “Family Planning Services and Population Research Act of 1970.” Title X is a federal grant program “dedicated solely to providing individuals with comprehensive family planning and related preventive health services.” The funds—currently $286.5 million a year—are given to the individual states who, based on federal rules and regulations, disperse it to qualified Title X clinics. The statute prohibits this money from being used to support abortion as a method of family planning. According to the law, “[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.”  

If Title X already prohibits funding of abortion, why is the new rule necessary?

Title X allows grant money to be “used only to support preventive family planning services.” All this really means, though, is that grant recipients like Planned Parenthood cannot directly use money from the federal government for abortion services. But money is fungible. A dollar spent for one purpose can also cover other purposes. For example, the money the federal government gives to Planned Parenthood can be used indirectly to cover operating and overhead costs such as rent and staff salary. This allows Planned Parenthood to provide abortions that are essentially subsidized by the government.  

What is ERIC's position on the new rule?

When the rule was proposed last year, ERLC President Russell Moore issued a statement, ahead of the ERLC submitting public comments in support of the rule, saying:  

“I welcome this announcement from the administration of its intention to propose a rule clearly stating that family planning does not include abortion. This is a critical point to make, because the facts are clear: without abortion, there would be no Planned Parenthood. Planned Parenthood is not a ‘healthcare’ organization but a storefront for an industry that devalues human life and exploits families and communities.  

This rule from the Department of Health and Human Services is a responsible and commendable step toward our goal of totally separating taxpayer funds from Planned Parenthood and the abortion industry. We will work to make sure the rule remains strong as it works through interagency review. At the same time, we know Planned Parenthood will do everything in its power to maneuver around this rule, even if enacted. That being the case, we will continue to call upon Congress to take legislative action, and we will not stop until abortion is no longer supported with even a penny of taxpayer funds.”  

Where do we go from here?

While this is not a final ruling from the 9th Circuit, it does allow the Trump administration to continue implementing these important Title X regulations while the case moves forward on appeal. This is good news for the most vulnerable among us, the unborn, who cannot speak for themselves. We must continue to “Speak up for those who have no voice, for the justice of all who are dispossessed. Speak up, judge righteously, and defend the cause of the oppressed and needy” (Prov. 31:8–9).

The ERLC will continue to be a voice for the voiceless and defend the cause of the oppressed and needy, whether that be the unborn, widows and orphans, migrants fleeing violence, the persecuted, or the poor.  

ERLC intern Kiah Crider contributed to this article.