Health Law Daily Court upholds federal regulation strictly prohibiting the use of Title X funds for abortion services
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Thursday, June 11, 2020

Court upholds federal regulation strictly prohibiting the use of Title X funds for abortion services

By Harold Berman, J.D.

A reproductive services clinic could not claim the federal government violated its Constitutional rights by promulgating a regulation that restricted funding and communication to patients concerning abortion as a condition of receiving program funding for non-abortion services.

A new federal regulation under Title X that required strict separation of abortion facilities from those funded by Title X, and imposed restrictions on abortion referrals, was a valid exercise of regulatory authority and did not run afoul of the U.S. Constitution, a federal district court in Maine ruled. The court dismissed a reproductive services clinic’s suit against HHS, finding that the regulation did not limit patients’ access to abortion services, and only imposed conditions on receipt of Title X funds that were consistent with Congress’ legislative intent (The Family Planning Association of Maine D/B/A Maine Family Planning v. HHS, June 9, 2020, Walker, L.).

Background. A reproductive health clinic in Maine provided a range of medical services, including abortions. The clinic received funding under Title X, a federal program that supported public access to reproductive health products and services, but prohibited its funding from being used "in programs where abortion is a method of family planning." The clinic had been operating under a regulation under Title X issued in 2000, which permitted funding recipients to provide abortion services if those services did not use Title X funding, and to provide abortion referrals to patients upon request in certain circumstances.

In March 2019, HHS issued a new regulation mandating "clear physical and financial program separation from programs that use abortion as a method of family planning." The new regulation permitted non-directive abortion counseling, but prohibited referrals for abortion services, and generally prohibited recipients from using any of its services "as an indirect means of encouraging or promoting abortion as a method of family planning."

The new regulation was inconsistent with the clinic’s provision of abortion services, which housed its abortion services in clinic space that it paid for in part by using its Title X funds, and referred its Title X patients to the clinic’s abortion services as well as affiliated abortion providers. Under the new rule, the clinic could continue to provide abortion services, but would be required to obtain new space or reconfigure existing space for its abortion services in order to continue receiving Title X funds.

In August 2019, the clinic left the Title X program, terminating a 3-year Title X contract that had begun only a few months before. The clinic brought suit, claiming it was forced to leave the Title X program because implementing the new regulation "would materially and irreparably damage the provision of both family planning services and abortion care in Maine."

The clinic also contested the rule’s post-conception activities requirements that prohibited abortion referrals, claiming it would significantly change how clinic practitioners spoke with patients about their health care options. The clinic alleged that the new regulation would deny the clinic and its patients their fundamental freedoms contained in the First and Fifth Amendments to the U.S. Constitution.

HHS moved to dismiss, or alternatively, for summary judgment. The clinic moved for summary judgment.

Not arbitrary and capricious. The court granted HHS’ motion, dismissing the clinic’s complaint. The court first rejected the clinic’s assertion that the regulation’s provisions concerning post-conception activities were arbitrary and capricious. The regulation did not prohibit abortion counseling, and its prohibition of abortion referrals was not arbitrary. Rather, Congress had required Title X funds not be "used in programs where abortion is a method of family planning." This prohibition was sufficiently ambiguous to permit HHS to interpret it as prohibiting abortion referrals.

Nor did the clinic’s inability to provide abortion referrals limit patients’ access to abortion services, including those provided by the clinic. Although the American Medical Association (AMA) stated that HHS must condone abortion referrals, it did not specifically state that physicians must make those referrals. Nor could the AMA’s position be interpreted as requiring abortion referrals because the AMA exempted physicians from making abortion referrals based on their own conscience.

The court also rejected the clinic’s argument that the rule’s requirement that it separate its abortion services was arbitrary and capricious. The rule itself stated that shared facilities created a risk that Title X funds would be used directly or indirectly for impermissible abortion services, or that funds would be co-mingled. The clinic had been using its Title X funds for dual-purpose facilities that included abortion clinics. The new regulation’s prohibition on this practice reflected the current administration’s differing views from previous administrations, but could not be considered arbitrary and capricious on that basis.

Not contrary to law. The court next rejected the clinic’s argument that the regulation ran contrary to the non-directive counseling mandate contained in the federal Continuing Appropriations Act and did not meet the Affordable Care Act’s objectives.

The regulation was not incompatible with the non-directive counseling mandate because Title X regulation permitted a distinction between counseling and referrals, and the language of the Continuing Appropriations Act did not negate that distinction. The regulation allowed for Title X recipients to offer non-directive counseling concerning abortion services.

Nor did the regulation conflict with the Affordable Care Act. Although the Act prohibited HHS from imposing regulations that created unreasonable barriers to medical treatment or information, the court reasoned that it did not restrict HHS from administering its own grant programs. Additionally, the Affordable Care Act did not speak to Congress’ intent not to support abortion services through Title X, and under the ACA a patient still could obtain abortion services outside of Title X.

Not contrary to the Constitution. The HHS regulation did not run afoul of the First or Fifth Amendments to the U.S. Constitution. The separation requirement of the regulation did not create an unconstitutional condition to the clinic’s patients’ right to terminate a pregnancy before it was viable, as the clinic contended.

The clinic’s argument was not viable that HHS’s regulation effectively shut down abortion clinics by requiring abortion providers not to share space with family planning services. To the contrary, the clinic did not have a Constitutional right to provide abortions, and still could perform abortions while receiving Title X funding. The only requirement imposed by the regulation was that abortion clinics and Title X-funded clinics must be separate.

Nor did the regulation violate equal protection principles contained in the Fifth Amendment’s Due Process Clause by discriminating against pregnant patients who sought to exercise their right to an abortion. That patients were provided with prenatal care referrals, but not with abortion referrals, did not discriminate because all patients received the same kind of referrals.

The clinic’s argument failed that HHS forced it from the Title X program because HHS did not approve of their exercise of free speech. The clinic argued that the regulation prevented it from speaking honestly with its patients and compelled speech about prenatal referrals.

The regulation did not restrict speech at all outside of Title X-funded programs, and did not prevent abortion proponents or providers from participating in a Title X program. The regulation did not leverage funding to control speech outside of Title X, but rather attempted to create limits to Title X spending, and so did not unconstitutionally condition funding on giving up on a right of free speech.

The case is No. 1:19-cv-00100-LEW.

Attorneys: Emily S. Ullman (Covington & Burling LLP) for Family Planning Association of Maine d/b/a Maine Family Planning. Daniel M. Riess, U.S. Department of Justice, for U. S. Department of Health and Human Services and Alex M. Azar, II.

Companies: Family Planning Association of Maine d/b/a Maine Family Planning; U. S. Department of Health and Human Services

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