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Commentary: Reproductive health care may take a hit in some states

ROCHESTER, N.Y. — On April 13 President Donald Trump approved a Congressional resolution, H.J. Res 43, that voided a regulation on Title X funding promulgated by the Obama administration in December. Before he did so, the ACLU warned that “reproductive health care for millions of low-income women is one Trump signature away from being threatened.”

Will millions lose reproductive health care? With all due respect to the ACLU, probably not.

Congress enacted Title X in 1970. The law subsidizes the provision of family planning services to the poor. Covered services include pregnancy testing, contraceptives, cervical and breast cancer screening, infertility services, and health education.

The subsidies or awards mostly go to the states, which in turn directly contract with providers.

In 2015 New York state received $13.5 million, to which it added its own funds. New York then granted awards to 184 providers. They served 308,483 persons.

In our region Planned Parenthood is a grantee of the state. In 2016 it received $4.6 million and served close to 10,000 clients.

That Planned Parenthood is a major recipient of Title X funds does not seem to be a big issue in New York. However, in other states it is, because Planned Parenthood performs abortions.

The Hyde Amendment prohibits Title X funds to be spent on abortions and abortion counseling. Thirteen states deemed this prohibition to be insufficient. In various ways they passed laws that limited or prevented the award of Title X funds to Planned Parenthood and other abortion providers.

Some states were very explicit. For example, last year Florida legislated that no state agency may “expend funds for the benefit of, pay funds to, or initiate or renew a contract with an organization that … operates … clinics that … perform abortions.”

Other states were more circumspect. In 2011 Kansas limited awards to public entities, hospitals, and federal qualified health centers that provide comprehensive primary and preventive health care. Since Planned Parenthood is a private, specialized health care provider, it did not qualify and its contract was not renewed.

These limitations disrupted service to low-income persons. In Kansas between 2011 and 2015 the number of persons served declined from 38,461 to 24,047, a decrease of 37 percent.

The states cannot cite any evidence that Planned Parenthood is less effective at accomplishing Title X objectives. In fact, studies show the contrary to be true.

The spurt of limitations prompted the Department of Health and Human Services to step in. It ruled states could not “prohibit an entity from participating” in a Title X project “for reasons other than (the entity’s) ability to provide Title X services.” 81 Fed. Reg. 91852 (Dec. 19, 2016).

This is the regulation Congress and the president abolished. Does their action mean that millions will lose reproductive health care? Maybe, maybe not. New York, for one, will not be changing its practices.

The abolition of the regulation does return the jurisprudence on Title X to what it was before the regulation. And that jurisprudence was mixed, depending on the text of the state limitation.

Take Florida’s law. A district court struck it down as an unconstitutional condition. Planned Parenthood Southwest v. Philip, No. 4:16-cv-321 (N.D. Fla. June 30, 2106).

The granting of an award, even as a passthrough, is an exercise of a state’s spending power. As a condition of a person’s receipt of an award, a legislature may require the person to engage in certain unrelated activity (or abstain from unrelated activity) only if the legislature may directly require the person to engage in (or abstain from) that unrelated activity.

The Florida law explicitly denied funds to a provider of abortions. The Supreme Court has held a person has a constitutional right to perform abortions, if it does so on its “own time and dime.” Agency for Int’l Dev. v. All. For Open Soc’y Int’l, Inc., 570 U.S. __ (2013). Since the state cannot compel a person to refrain from performing abortions, conditioning a benefit on doing so put the law “squarely on the unconstitutional side of the line.”

On the other hand an appeal’s court upheld the Kansas law, not finding it an unconstitutional condition. Planned Parenthood of Kansas and Mid-Missouri v. Maser, 747 F.3d 814 (10th Cir. 2014).

The plaintiff argued Kansas effectively limited its ability to speak on the subject of abortion and associate with like-minded groups, if it wanted Title X funds.

The court responded the law “contains, on its face, nothing that discriminates based on speech or association.” It pointed out that the courts have applied the unconstitutional conditions doctrine only when the “conditions (are) explicitly imposed by law” or when an executive terminates a government-provided benefit, such as employment, in retaliation for protected speech.

Neither situation was present in the Kansas case. And the court refused to consider evidence that the legislators and the governor really wanted to defund Planned Parenthood when they adopted the law.

Planned Parenthood also contended that Title X does not permit a state in making an award to utilize criteria unrelated to those mentioned in the statute. The court refused to go down that road on the grounds that Title X does not create a private cause of action for injunctive relief.

The only party with the power to enforce Title X is the Department of Health and Human Services. We now know the Department under the Trump administration is less likely to exercise the power.

What happens next? Look for the states whose laws were enjoined to try again, possibly following the example of Kansas. And look for the disqualified providers to go to court, arguing the limitations are unconstitutional conditions.

In this attack on Planned Parenthood and other abortion providers poor women will lose. How many is to be determined.

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

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