The Biden Department of Health and Human Services, led by Secretary Xavier Becerra, has made perhaps its most radical move thus far. In a sweeping rule-change proposal, HHS determined it will disregard both the separation of powers and Supreme Court precedent while sacrificing women and girls, and healthcare professionals’ freedom of conscience, on the altar of what has long been Becerra’s sacred cow: the abortion industry.
The federal government’s Title X program distributes about $300 million dollars each year to healthcare providers for “family planning” services, which is defined in the statute to include many different options. To protect taxpayers from being forced to fund abortion, the text of the statute specifically provides that the funds cannot go to “programs where abortion is a method of family planning.”
But the Biden HHS’s proposed Title X rule changes would contradict that clear text in the most egregious way, allowing abortions to be intermingled with Title X services — and then requiring all recipients of Title X funds to counsel and refer women for abortions.
Concerns abound with these rule changes, but a few stand out among them.
First, HHS does not have the constitutional power to implement this broad and coercive mandate. As the Supreme Court noted in Rust v. Sullivan, “If one thing is clear from the legislative history, it is that Congress intended that Title X funds be kept separate and distinct from abortion-related activities. It is undisputed that Title X was intended to provide primarily pregnancy preventive services.”
In addition to contradicting Rust and the text of Title X, the proposed Biden HHS rules would violate the conscience rights of health providers nationwide who cannot promote abortion because of their commitment to protecting life. Consequently, some of these providers would opt out of the Title X program or close their doors, decreasing women’s access to healthcare for themselves and their families. But that’s not the only way the proposed HHS rules hurt women. By deleting sections in 59.5(a)(12) of the previous rules, they also weaken requirements that Title X recipients protect minors from sexual abuse and human trafficking. This further demonstrates Becerra’s allegiance to abortion businesses such as Planned Parenthood, which has been caught red-handed in numerous cases of sex abuse cover-ups, rather than standing for women.
Normally, seeing such abysmal policies from HHS might be surprising. But those familiar with Becerra’s record know to expect pro-abortion policies from him early and often — even if they’re against the law.
In 2003, then-congressman Becerra voted against the Partial-Birth Abortion Ban Act that sailed through Congress and was upheld by the Supreme Court in 2007. Yet at a hearing last month, when questioned by members of Congress about partial-birth abortion, Becerra denied that the barbaric practice was illegal.
As California attorney general, Becerra led a lawsuit that attempted to force the Little Sisters of the Poor, a group of nuns, to provide contraception and abortion-inducing drugs in violation of its Catholic faith’s teachings about the dignity of life. And in a case I helped litigate with the Alliance Defending Freedom, NIFLA v. Becerra, he defended a California law compelling pro-life pregnancy centers to advertise for the abortion industry. Thankfully, the U.S. Supreme Court ruled against him in both of these lawsuits.
Evidently, the Constitution has never discouraged Becerra from abusing his power to prop up the abortion industry any way he can. That continues with his HHS rules, which would be a loss for healthcare providers, the freedom of conscience, and women and girls. The lone winner would be the billion-dollar abortion industry.
Becerra should strongly consider revising his proposed HHS rules. If not, he may find himself racking up yet another “L” at the Supreme Court.
Denise Harle is senior counsel with the Alliance Defending Freedom Center for Life (@Alliance Defends). Harle served as Florida’s deputy solicitor general from 2015 to 2017.
