The Significance of SCOTUS Revisiting the Trump Rule Barring Abortion Groups From Title X Funding

The Supreme Court’s examination of abortion-funding rules could have significant implications for future pro-life administrations.

Title X is a federal program that is subject to new regulations issued from the Department of Health and Human Services. The Supreme Court is reviewing the latest rule from HHS under the Trump administration.
Title X is a federal program that is subject to new regulations issued from the Department of Health and Human Services. The Supreme Court is reviewing the latest rule from HHS under the Trump administration. (photo: Shutterstock / Shutterstock)

WASHINGTON — The U.S. Supreme Court will review a case looking at an administration’s ability to limit federal funding to abortion providers in the Title X family-planning program. 

And while the Biden administration is likely to rescind the rule in question, legal experts stress the high court’s decision in the case will have important implications for future administrations.

This week, the high court took up a challenge to the Trump administration’s Protect Life Rule, which bars Title X family-planning funding recipients from referring for abortions and does not permit funding recipients to be located in the same building in which abortions are provided. Planned Parenthood, the nation’s largest abortion provider, withdrew from the Title X program over the rule. It also challenged the rule, alleging that it was “harmful to patient care.” The 9th Circuit Court of Appeals upheld the rule while the 4th Circuit ruled against it. The Biden administration has stated that they are reviewing the Protect Life Rule and are expected to rescind it. 

In his January memo on the issue, President Joe Biden said that the law that created Title X funding “specifies that Title X funds may not be used in programs where abortion is a method of family planning, but places no further abortion-related restrictions on recipients of Title X funds” and that the Trump-era rule “has caused the termination of federal family-planning funding for many women’s health-care providers and puts women’s health at risk by making it harder for women to receive complete medical information.”  

Archbishop Joseph Naumann of Kansas City, Kansas, chairman of the U.S. Conference of Catholic Bishops’ Committee on Pro-Life Activities, responded in a Jan. 29 statement rebutting Biden’s arguments. 

“In addition to the [Title X] program explicitly prohibiting taxpayer funding for abortion, its authors further emphasized this intent by stating that ‘the funds authorized under this legislation [shall] be used only to support preventive family-planning services, population research, infertility services, and other related medical, informational, and educational activities,’” Archbishop Naumann noted. 

He praised the rationale of the Protect Life Rule, stating the bishops have “long supported efforts to ensure that the provision and promotion of abortion is kept physically and financially out of the pre-pregnancy family-planning services provided through the Title X program.” 

“By rescinding this rule, the administration will be forcing abortion into a pre-pregnancy program specifically designed to exclude abortion; a move which is immoral, impractical, and may also be unlawful,” Archbishop Naumann concluded.

 

Title X’s Separation From Abortions

Katie Glenn, government affairs counsel at Americans United for Life, told the Register that “the Title X rule under the Trump administration was really seeking to clarify the original intent when Congress created the Title X program. That program is for pre-pregnancy family-planning programs. Obviously, pre-pregnancy suggests once a woman is pregnant then this program wouldn’t necessarily be the fit for the types of services she needs, and certainly Congress even went a step further and said abortion is not included in this program.” 

Glenn said that the debate became over “what level of separation is required” for abortion groups seeking Title X funding, as “under the Obama administration, groups like Planned Parenthood were getting Title X funding,” while claiming to spend it only on pre-pregnancy services, despite being part of “the same business.” 

She explained that “what the Trump rule was clarifying was that part of the abortion prohibition in the rule means that there has to be both physical and financial separation; so you’ve got to have different books, and you’ve got to have a different building — and so that’s why, when the rule came out, Planned Parenthood and other abortion groups very dramatically withdrew from the program.”

Glenn believed that the Supreme Court may have taken up the case due to the split between lower-court judges, “where different federal courts had come down differently on whether the rule was created appropriately, whether it fell within the scope of HHS [Health and Human Services].” She could see the case being withdrawn, depending on the actions the Biden administration takes on the matter; “but if they’re reviewing it through the rulemaking process, that’s going to take months, so the court could hear the merits of this case while that’s ongoing, and it would be more of a decision about whether the rulemaking was properly applied.”

 

Rust v. Sullivan Precedent

Melanie Israel, a research associate at the DeVos Center for Religion and Civil Society at the Heritage Foundation, told the Register that it’s “important that the Supreme Court clear up these questions because a future pro-life administration could still try to implement this regulation; and, in fact, the regulation that the Trump administration had issued — that is at the heart of this case — is actually very substantially similar to a regulation that was issued back in the late ’80s and actually upheld as constitutional by the Supreme Court in 1991.”

Israel was referring to the 1991 Supreme Court decision in Rust v. Sullivan, which examined a similar rule that a “Title X project may not provide counseling concerning the use of abortion as a method of family planning or provide referral for abortion as a method of family planning” and required Title X programs to be “physically and financially separate” from abortion activities. 

In its 5-4 decision, the Supreme Court found that “regulations promulgated by the secretary [of HHS] do not raise the sort of ‘grave and doubtful constitutional questions’ that would lead us to assume Congress did not intend to authorize their issuance.” That rule never went into effect, as the George H.W. Bush administration unsuccessfully attempted to modify the regulations prior to the Clinton administration eliminating the rule.

Israel said that “the fact that the 9th Circuit recognized [Rust v. Sullivan] whereas the 4th Circuit didn’t, that’s really prompting the Supreme Court to take this up, and so it’s an important question that needs to be sorted out, with lower courts essentially ignoring what the Supreme Court has previously said. It’s important to clear this up so that future pro-life administrations will be able to enforce the law.”

In a statement Monday, Alliance Defending Freedom senior counsel John Bursch said that “this case is important regardless of the fact that we have a new administration. The Supreme Court has already recognized that the federal government has the authority to prevent Title X funds from being used for abortion. Now the court’s guidance is needed to make clear that any administration, including future ones, can enforce a rule like this one, if it so chooses, and that the courts can’t interfere with that.”

 

Pro-Life Perspective

Pro-life groups have praised the Supreme Court for taking up the case this week and are hopeful that the high court will clarify the ability of future administrations to put such a rule in place. 

“We are confident the Supreme Court will rule that the Trump administration and future pro-life administrations have the right to disentangle Title X taxpayer funding from the abortion industry,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, in a statement. “Abortion is not ‘family planning,’ and a strong majority of Americans — including 65% of Independents and nearly one-third of Democrats — oppose taxpayer funding of abortion. The Protect Life Rule honors their will and the plain language of the Title X statute by stopping the funneling of Title X taxpayer dollars to the abortion industry, without reducing family-planning funding by a dime.”

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