President Trump announced last week a measure that requires organizations like Planned Parenthood that receive “family planning” federal funding to actually follow the law.
Trump made remarks Tuesday night at the Susan B. Anthony List dinner about his new policy, saying “For decades, American taxpayers have been wrongfully forced to subsidize the abortion industry through Title X funding so today, we have kept another promise. My administration has proposed a new rule to prohibit Title X funding from going to any clinic that performs abortions.”
From a policy perspective (what should the government do), this is an exceptional and welcomed move from the Trump administration in fulfilling a campaign promise to pro-life conservatives. “I wholeheartedly commend the Trump Administration…” Dr. James Dobson, a leading evangelical voice in conservative family policy, said last week. “Those of us who stand on the side of life praise God today for a genuine victory in our fight to defend the unborn, and we continue to set our sights and prayers on finally, one day soon, overturning Roe v. Wade.”
From a constitutional perspective (what can the government do), Trump is on solid ground. Congress legislated the Public Health Service Act, which includes a federal program that funds “family planning” services through Title X of that act. Title X authorizes the Department of Health and Human Services, which is an agency under the executive branch, to “make grants to and enter into contracts with public or non-profit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services.”
However, the language of that legislation that authorizes and enables HHS to provide such funding also prohibits interpreting “family planning” to include abortion services. Congress specified that “none of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.”
In 1991, the Supreme Court in Rust v. Sullivan upheld President Ronald Reagan-era regulations issued in 1988 that prohibited recipients of government funds from advocating, counseling, or referring patients for abortions, consistent with Congress’ intent. The Supreme Court held that Reagan’s HHS mandate was permissible under Title X and did not violate the First or Fifth Amendments to the Constitution.
Notwithstanding the Court’s holding, the President Bill Clinton administration almost immediately repealed the regulations as a policy decision, and now Trump is simply reinstating similar mandates to HHS.
Michael Farris, president, CEO, and general counsel of Alliance Defending Freedom told the Washington Examiner, “President Trump has done a very good thing. The Supreme Court has held similar policy under the Reagan Administration to be constitutional, so there can be no doubt of the same outcome here.”
Predictably, many pro-abortion advocates claim that “women’s health” issues will be substantially impacted, yet also still claim that abortion services are less than 3 percent of what Planned Parenthood actually provides. Regardless of which assertion is actually correct, the fact remains that Planned Parenthood is America’s largest abortion provider, and about 15 percent of its more than $450 million annually received in federal funding is provided through Title X.
However, theirs and any other objection falls squarely into a policy argument, not a constitutional one.
Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is director of Public Policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution.
