Three federal judges in the 9th Circuit have blocked enforcement of the Trump administration’s Protect Life Rule. The courts are doing no favors either for women or for U.S. taxpayers, who have long supported bright-line separation of abortion from contraception and limits on tax funding for abortion.
I have no doubt the United States Department of Health and Human Services has acted prudently and properly in issuing the Protect Life Rule. This vital regulation enforces longstanding statutory prohibitions on using Title X funds in programs where abortion is a method of family planning.
Section 1008 of Title X to the Public Health Service Act clearly states that “[n]one of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.” As HHS observes, this statutory prohibition “has not been altered since it was enacted in 1970.” The purpose of the Protect Life Rule is to “ensure compliance” with this statutory mandate.
Susan B. Anthony List is proud to be represented by our colleagues at the Thomas More Society as we support the government’s able defense of the Protect Life Rule in court. Together we have submitted an amicus brief in each of several federal lawsuits currently proceeding throughout the country.
As our briefs argue, the Protect Life Rule comports with other federal laws expressing a similar respect for human life. Since 1976, for example, the Hyde Amendment has barred the use of taxpayer funds to pay for abortions through the Medicaid program. Since 1996, with the adoption of the Coats-Snowe amendment, the law has barred discrimination against healthcare facilities and providers who decline to train or be trained to perform induced abortions. Since 2005, appropriations made through HHS have been subject to the Weldon Amendment, which prohibits allocations of federal funds to any federal agency or program, or any state or local government, that discriminates against healthcare entities who refuse to facilitate or provide abortions.
Our brief also observes that the Protect Life Rule accords with precedents of the U.S. Supreme Court affirming that government, including by its use of public funds and facilities, has a legitimate interest in protecting human life beginning in utero and in favoring childbirth over abortion. In the 2007 Gonzales v. Carhart case, the Court explained that the government “may use its voice and its regulatory authority to show its profound respect for the life within the woman.” In the 1989 Webster v. Reproductive Health Services case, the Supreme Court quoted an earlier precedent stating that the Constitution “does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth.”
In the 1980 Harris v. McRae case, the Supreme Court upheld the Hyde Amendment prohibition on Medicaid funds to pay for abortions and stated that “incentives that make childbirth a more attractive alternative than abortion for persons eligible for Medicaid . . . bear a direct relationship to the legitimate congressional interest in protecting potential life.”
Of course, the most compelling precedent of all is the 1991 Rust v. Sullivan case, where the Supreme Court affirmed the discretion of HHS to adopt stronger regulations to ensure compliance with federal prohibitions on Title X being used in programs where abortion is a method of family planning. Abortion advocates will argue that Rust v. Sullivan does not control the outcome of the Protect Life Rule, but we are confident the government will ably answer those arguments to the satisfaction of the Supreme Court—where this case will almost certainly be decided in the end.
The Protect Life Rule is well justified and sorely needed. Our amicus briefs in these cases cite a landmark report by Catherine Glenn Foster, my colleague at the helm of Americans United for Life, documenting the history of abortion providers misusing taxpayer funds. Documented abuses of federal funds outside the Title X program only reinforce the need to protect federal funds inside the Title X program. Indeed, it is easier to abuse Title X funds than it is to abuse certain other forms of public funding (e.g., Medicaid funds) because, as HHS itself has noted, Title X funds are disbursed as grants before services are rendered.
As our briefs further argue, the need for the Protect Life Rule is buttressed by abortion providers’ own arguments about how difficult it would be for them to separate abortion-related activities from legitimate healthcare programs funded by Title X. As summarized by HHS, the Protect Life Rule requires “Title X providers to maintain physical and financial separation from locations which provide abortion as a method of family planning.” Abortion advocates complain about the burden to providers of complying with the separation requirement. But this argument only shows why the Protect Life Rule is needed more than ever. Title X funds were never supposed to have been used to subsidize or facilitate any program that treats abortion as a method of family planning. As HHS has itself noted, insisting that “physical and financial separation would increase the cost for doing business only confirms the need for such separation.”
As this litigation proceeds, we are confident that favorable constitutional precedents and HHS’s reasonable interpretation of the law will ultimately prevail. The American people do not want federally funded family planning programs to be a compromised by including abortion. As the U.S. Supreme Court has itself stated, abortion is a “unique act” and “inherently different” from other medical procedures. The Protect Life Rule should be allowed to live up to its name.
Marjorie Dannenfelser is president of the national pro-life group Susan B. Anthony List.
