A new rule proposed by the Trump Administration would restrict the ability of abortion providers like Planned Parenthood to receive federal funds. The bureaucratic rule issued by the Department of Health and Human Services would not be subject to a congressional vote that has prevented previous attempts to defund Planned Parenthood from succeeding.
The new rule, which is expected to be issued on Friday, would require abortion providers to provide separate facilities for family planning services that receive federal Title X funds. The 1970 law requires financial separation between abortion operations and federally-funded family planning, but the law has traditionally been interpreted to allow both operations to be on the same physical site.
“The proposal would require a bright line of physical as well as financial separation between Title X programs and any program (or facility) where abortion is performed, supported, or referred for as a method of family planning,” a Trump Administration official told the Weekly Standard.
In 1988, the Reagan Administration proposed a similar rule that would have clearly separated Title X organizations from abortion services. The Supreme Court upheld the regulation, but it was rescinded by the Clinton Administration before it could take effect.
While the new rule would not automatically defund Planned Parenthood, it would require the abortion provider to make changes to keep receiving federal money. The group’s abortion services would have to be made both financially and physically separate from its family counseling operation.
“This proposal does not necessarily defund Planned Parenthood, as long as they’re willing to disentangle taxpayer funds from abortion as a method of family planning, which is required by the Title X law,” the Trump official said. “Any grantees that perform, support, or refer for abortion have a choice – disentangle themselves from abortion or fund their activities with privately raised funds.”
It is not clear when the rule would take effect, but it would not be immediate. Under the bureaucratic rulemaking process, executive branch agencies can create regulations that allow them to implement laws passed by Congress. Typically, the agencies first publish a Notice of Proposed Rulemaking and allow time for comments on the new rule. The rule takes effect after a final rule is published with an effective date.
Even though there is legal precedent for the authority of HHS to make the rule, a legal challenge by pro-abortion groups is likely. It could possibly take years for the case to be settled and different justices might reach a different decision than the prior court.
It is also possible that the rule would not survive the Trump presidency. Just as President Trump has reversed many of President Obama’s executive branch policies, a future president could easily reverse the Trump Administration’s interpretation of Title X. A pro-abortion Congress could also pass a law that overturns the rule.
Nevertheless, the rule is a good interim step in defunding Planned Parenthood and restricting the ability of abortion providers to receive federal money. The cost of complying with the rule would likely force many small clinics to choose between providing abortions or receiving federal funds.
Pro-life groups hailed the announcement of the new rule. “We thank President Trump for taking action to disentangle taxpayers from the abortion business,” Marjorie Dannenfelser, president of the Susan B. Anthony List, told NBC News. “This is a major victory which will energize the grassroots as we head into the critical midterm elections.”