On February 8, in a big win for health equity and reproductive rights and justice, the U.S. Court of Appeals for the Sixth Circuit upheld the Biden administration’s changes to the Title X program. While this is good news, the recent activity in the courts is a strong indicator that more permanent protections for Title X must be shored up if the program is to not only recover from past damage caused by the Trump administration and the COVID-19 pandemic, but also to continue advancing its mission of providing high-quality and affordable voluntary family planning and related health care services for low-income or uninsured individuals.
Fortunately, there are specific actions that can be taken by Congress, states, and the current administration to build a stable future for Title X. This commentary will outline the importance of the program, then review some effective measures available to lawmakers who want to strengthen it.
What Is Title X?
Title X was first signed into law in 1970 by President Nixon as an amendment to the Public Health Service Act. More than fifty years later, it is still the nation’s only federally funded family planning program.
Title X and Health Equity
People who already face barriers to accessing quality health care, such as people of color, low-income individuals, and those who are underinsured or uninsured, are disproportionately represented as Title X patients in comparison to their white, higher-income, and fully insured counterparts, making Title X a critical program for achieving health equity.
Even a cursory survey of the program’s coverage data illustrates the importance of Title X for low-income and marginalized communities.
Even a cursory survey of the program’s coverage data illustrates the importance of Title X for low-income and marginalized communities. In 2020, 40 percent of Title X family planning clients were on public insurance (i.e. Medicaid); 39 percent were uninsured; 87 percent had incomes at or below 250 percent of the Federal Poverty Level (FPL); 35 percent self-identified as Hispanic or Latino; and 26 percent self-identified as Black/African-American. Health centers funded by Title X cannot turn away patients for inability to pay for services, instead using a sliding-scale fee based upon the patient’s annual income level. This aspect of the program guarantees a necessary access point into the health care system for these individuals, who otherwise may be unable to receive affordable care.
Compounded Impact of the Trump Administration and the COVID-19 Pandemic
During the Trump administration, changes were made to Title X that put the program’s core function at risk. Commonly referred to as the domestic gag rule, the 2019 rule change made it illegal for health care providers participating in the Title X program to refer patients for abortion care, and required Title X programs to be separated from any abortion services. After the new regulations, roughly one-fourth of Title X grantees withdrew from the program rather than abide by the domestic gag rule, because abiding would have challenged their ability to offer their patients comprehensive, medically-accurate care.
This mass departure reduced Title X’s nationwide network capacity by nearly half, impacting approximately 1.6 million patients. While some of these patients likely managed to still receive care at different Title X sites or at sites no longer receiving Title X support, the gag rule still caused major disruption to their existing established care delivery networks. Since the gag rule went into effect in August 2019, those who rely on Title X services have reported increased costs, shorter hours of availability at clinics, and fewer services being offered at clinics.
The COVID-19 pandemic has also changed the Title X landscape. COVID-19 caused significant disruptions to Title X clinical operations and service delivery, especially during the early months of the pandemic in 2020. Prior to the Trump administration, more than 4 million people every year relied on Title X for family planning and other reproductive health care needs. In 2020, after the gag rule and COVID-19 pandemic began, that number dropped to only 1.5 million people served by Title X. That is a loss of 2.5 million clients, a staggering number of people who now may no longer be able to access affordable family planning and reproductive health care.
We know that the impacts of the COVID-19 pandemic have been inequitable from the beginning, with COVID-related mortality being greater amongst people of color and pregnant people, and Black women being the most likely to leave the workforce during the pandemic. These health and economic inequities may also be contributing to shifting fertility preferences and changes in demand for family planning access. Research conducted at the beginning of the pandemic indicated that one-third of the cisgender women surveyed reported wanting to get pregnant later or wanting fewer children because of COVID-19, with Black, Hispanic, and low-income women disproportionately represented in this statistic. It is no surprise that these are also the same demographics of women who have had the hardest time accessing family planning and reproductive health care services during the pandemic.
The Biden Administration’s Commitment to Repairing and Expanding Title X
Fortunately, the Biden administration has committed to defending Title X and expanding funding opportunities for Title X grant recipients since entering office. Part of this commitment came to fruition in the Final Rule, known as “Ensuring Access to Equitable, Affordable, Client-Centered, Quality Family Planning Services,” through which the U.S. Department of Health and Human Services (HHS) rescinded the 2019 gag rule. The Final Rule was issued on October 4, 2021 and went into effect on November 8, 2021. Also in October 2021, HHS announced $256 million in grant funding to expand access to equitable and affordable Title X family planning services. Most recently, right before the forty-ninth anniversary of Roe v. Wade, HHS announced the first-ever Intra-agency Task Force on Reproductive Healthcare Access. These commendable actions have been applauded by reproductive justice advocates.
Title X in the Courts
However, these advancements have been met with opposition from Republicans. In October 2021, the Ohio attorney general, joined by the attorneys general of Alabama, Arizona, Missouri, Arkansas, Nebraska, Florida, Oklahoma, Kansas, South Carolina, Kentucky, and West Virginia, sued the Biden administration over the Final Rule. In the submitted statement, these states, each of which have a history of hostility to abortion, argue that Title X is not in accordance with law, claiming that the Final Rule does not adequately keep Title X funds from being used to unlawfully subsidize abortion. This is a bad-faith argument that ignores the role of the Hyde Amendment, which unfortunately prohibits the federal funding of abortion care.
Should Ohio appeal this case to the U.S. Supreme Court—with its conservative, notably anti-abortion majority—the outcome could be incredibly damaging for Title X family planning and other sexual and reproductive health care access.
So far, the courts have kept the Final Rule intact. In December 2021, the U.S. District Court for the Southern District of Ohio Western Division denied the attorneys general’s motion for a preliminary injunction, and in February 2022, the U.S. Court of Appeals for the Sixth Circuit declined to enjoin the Biden administration’s Title X rule. Put simply, both of the courts decided to keep the status quo by allowing the Final Rule to remain in place, for now. Despite these rulings in the courts, should Ohio appeal this case to the U.S. Supreme Court—with its conservative, notably anti-abortion majority—the outcome could be incredibly damaging for Title X family planning and other sexual and reproductive health care access.
With the threat of an appeal looming over the program, it is crucial that lawmakers move quickly to protect Title X from further damage. Fortunately, there are several policy actions that will serve this purpose well, and political circumstances favor positive intervention, given the current administration’s emphasis on equity and its commitment to repairing the damage caused both by the previous administration’s 2019 rule and the COVID-19 pandemic. Without taking action, Title X will be left vulnerable to the whims of changing administrations and funding priorities.
In order to protect the Title X program, lawmakers should undertake the following:
- States should enact permanent protection of Title X. Currently, Maryland is the first and only state to enact permanent protections for Title X funds, by replacing federal funds with state funds. Other states should follow suit in seeking to protect family planning funding, using Maryland as a model.
- Congress should codify provider nondiscrimination provisions in the Title X statute. This will protect providers who meet the program requirements from administration changes that might impact their ability to receive funding.
- Congress should fully fund the Title X program. The Blueprint for Sexual and Reproductive Health, Rights, and Justice set this estimate at $954 million for fiscal year 2022. While that number will not be reached during this appropriations process, it is a benchmark that Congress should aim for in future budgets. The proposed $500 million, while a bold increase of $214 million, still does not make up for inflation.
- The Office of Population Affairs (OPA) should continue to direct funding into jurisdictions that have lost all or much of their funding due to the 2019 rule change. The grantees that withdrew from the program will need assistance in reentering, and HHS must prioritize helping them do so.
This is a critical moment for the Title X family planning program. Despite legal threats posed by opponents like the Ohio attorney general, which seek to reinstate the 2019 rule and roll back progress, there is a window of opportunity to address the health inequities that have compounded over the past few years. The Title X program needs to not just get back on track, but be elevated to its full potential in serving the health care needs of some of the most marginalized populations in the country.