HHS official on Title X change: 'It is not a gag rule' on physicians

Doctor with patient
A Department of Health and Human Services official told lawmakers a Title X final rule isn't a "gag rule" on what physicians can tell patients about reproductive choices. (Getty/wutwhanfoto)

At a House hearing Wednesday on the Trump administration’s controversial rulemaking changes to the Title X program, a Department of Health and Human Services (HHS) official sought to get one message across: “It is not a gag rule.”

Despite the opposition from numerous physician organizations that the Title X rule will prevent them talking to patients about all their options, including referring women for abortions under the family planning program, Diane Foley, M.D., deputy assistant secretary for the office of population affairs at the HHS, defended the rule during her two-and-a-half hours of testimony.

Opponents, including the American Medical Association (AMA), have filed legal action to prevent implementation of the rule arguing it is a “gag rule” that interferes with and imposes restrictions on the patient-physician relationship. Judges have issued injunctions blocking the rule from taking effect May 3.

Opponents say the rule will decimate the Title X program and limit the medical advice physicians can give their Title X patients

“It is not a gag rule,” Foley told lawmakers at a lengthy and sometimes heated hearing before the Oversight and Investigations Subcommittee of the Committee on Energy and Commerce. She said the primary purpose of the final rule is to ensure compliance with the statute that authorized the Title X program in 1970, in which Congress made it clear that funds cannot be used in programs where abortion is a method of family planning. The rule does not force physicians to omit information in their conversations with their patients, she said.

But a doctor who also testified later in the hearing adamantly disagreed. “It is absolutely a gag rule of what I’m able to say to my patients,” said Jamila Perritt, M.D., an OB/GYN and a fellow of the Physicians for Reproductive Health.

She told committee members if a patient came to her asking where she could go to get an abortion, under the rule, she could not give the patient that information.

At times turning into a divided debate on abortion, numerous House members asked Foley how HHS could put forth a final rule that major medical associations oppose and say is detrimental to patients’ health. Title X provides funding for family planning services at almost 4,000 health centers that serve 4 million patients across the country, mostly low-income, uninsured women.

RELATED: Federal judge rules in favor of AMA lawsuit, says he will block Trump restriction on abortion clinic funding

Foley said the rule will not prevent doctors from having complete conversations with patients. It does allow physicians to omit information based on their personal conscience. She said HHS was trying to prevent the “co-mingling” of funds and prevent Title X grants from paying for abortion services. The rule will require providers that receive Title X funding to maintain "physical and financial separation" from an abortion provider.

“It’s amazing that the administration wants to follow the statute,” said Rep. Morgan Griffith, a Republican from Virginia, sarcastically.

Foley said there was “confusion” about the statute, but HHS had no evidence Title X funds were being used in programs where abortion is a method of family planning. “That fear is unfounded,” said Rep. Raul Ruiz, M.D., a Democrat from California.

He also worried the final rule violated patient trust in physicians. “That is why many doctors, including myself, are opposed to this rule,” he said.

The final rule will permit—but not require—providers receiving Title X funding to provide "non-directive counseling" about abortion. In other words, they can talk about abortion with patients but not influence the patient’s decision.

Rep. Jan Schakowky, a Democrat from Illinois, said the final rule’s true purpose was to limit abortion. “Fifty years later, what we are looking at is the Trump administration deciding to turn back the clock. This is about abortion,” said Schakowsky. “This is the politics of abortion. I just want to say women are not going back. This is not going to be tolerated now.”

RELATED: AMA files lawsuit to block Title X rule restricting abortion clinic funding

Rep. Annie Kuster, a Democrat from New Hampshire, said the requirement that clinics not provide abortions at locations where they provide other Title X health services for patients would require many of them to close their doors as they will not be able to afford to run two sites. She and other members who represent rural communities expressed worries about where women would go for healthcare services if already limited clinics were to close. 

It’s estimated that 10% to 20% of Title X service sites currently provide family planning and abortion services in the same location, Foley said.

Following Foley’s testimony, House members heard from a panel of witnesses. “Title X is in the fight of a generation,” said Clare Coleman, president and CEO of the National Family Planning & Reproductive Health Association, the organization that represents the vast majority of Title X providers.

Lawmakers should look at what happened in Texas when the legislature in 2011 passed a series of similar restrictive laws, said Kami Geoffrey, CEO of the Women's Health and Family Planning Association of Texas.

“The Texas experience serves as a cautionary tale of the deeply harmful consequences that can result when policymakers target particular safety net family planning providers,” she said. Those funding and policy decisions resulted in 82 family planning clinics—one out of every four in the state—either closing or reducing hours, restricting access to reproductive health services across the state, she said.

The intended target was providers that also provide abortion services or affiliate with abortion service providers, specifically Planned Parenthood, she said. While they were blocked from participating in family planning programs administered by the state, consequences reached further so that two-thirds of the clinics impacted were providers with no affiliation with abortion service provides.

“Tens of thousands of Texans lost access to services,” she said.

The final rule will jeopardize the trust that patients put in their doctors, said Perritt, who is also a fellow of the American College of Obstetricians and Gynecologists, a group that opposes the final rule. “I am here today to give a voice to the people I take care of every day who are working to manage their reproductive lives,” said Perritt, who later in the hearing faced questioning from one House member about her own medical practice and the number of babies she has delivered and the number of abortions she has performed.

RELATED: Trump administration releases Title X rule restricting abortion clinic funding

“In short, it goes against everything I know as a physician and against the oath that I took when I began this work …The federal government is telling me and other providers what we can and cannot say to our patients. It is telling my patients what they can and cannot hear from their doctors,” she said.

Catherine Glenn Foster, president and CEO of Americans United for Life, an anti-abortion group, defended the final rule, saying it would uphold Congress’ intent that Title X money not be used for abortions. Challenges to the rule are rooted in the desire to use program funding for abortion-related services, she said.

Pregnant women should not be steered by physicians into considering abortion, she said. “I live with the regret of being coerced into abortion.”