The Biden-Harris administration’s Title X rule finally went into effect in November 2021, restoring the crucial reproductive health care program to its previous state. The Biden-Harris regulations set the rules for today’s Title X program and outstanding grant applications moving forward. We have reviewed the rule, and this is what you need to know.
For more than 50 years, Title X has served as the nation’s family planning program, supporting a network of grantees providing high-quality sexual and reproductive health care to millions of people coast to coast, with a mandate to serve primarily low-income and adolescent patients. Despite this successful track record, the Title X network has weathered years of politically motivated attacks, the most recent and damaging being the Trump-Pence administration’s “domestic gag rule,” which went into effect in 2019 and hamstrung the family planning network.
The Trump-Pence rule imposed ideologically driven restrictions and requirements on care, causing many providers to leave the network rather than comply. In early 2020, Guttmacher estimated that the Trump-Pence rule would essentially cut the network’s patient capacity in half. Recent data from the Office of Population Affairs (OPA), the division of the US Department of Health and Human Services (HHS) that administers the Title X program, paint an even more devastating picture: The number of clients served by the Title X program dropped to 1.5 million in 2020, when it had served more than four million patients in recent years, a precipitous 61% decline. OPA’s analysis disentangles the impact of the Trump-Pence regulations on Title X services versus the impact of the pandemic, attributing approximately one-third of the client decrease to the pandemic and a whopping two-thirds of the decrease to the Trump-Pence rule.
Acknowledging the harms of the Trump-Pence rule on the Title X program, the White House released a presidential memorandum eight days after President Biden’s inauguration, directing HHS to review the Trump-Pence rule and consider whether to suspend, revise or rescind it. Advocates across the country engaged in the administrative process, submitting comments alongside 140,000 others supporting a reversal of the Trump-Pence domestic gag rule and a return to the previous regulations.
In a major victory for reproductive health advocates, the Biden-Harris Title X rule explicitly revokes the 2019 Trump-Pence rule “in its totality,” and modernizes regulations to focus on inclusion and health equity. While the Biden-Harris rule went into effect on November 8, Ohio and 11 other states filed a lawsuit in late October to block it in federal court. The case is ongoing and other lawsuits are expected to follow.
The Biden-Harris rule largely reverts Title X to its long-standing and successful former structure. The rule:
- Removes the requirement of strict physical separation between Title X activities and abortion care, an impractical requirement that was designed to force out clinics that provided, or were affiliated with, abortion services.
- Allows Title X providers to provide pregnant patients with nondirective counseling on all of their options and refer patients to all services the client requests, including abortion.
- Requires providers to offer a broad range of contraceptive methods, essentially excluding ideologically driven providers that were welcomed into the program under the Trump-Pence rule and provided only fertility awareness–based or abstinence options.
- Tightens confidentiality for all patients, and especially for those younger than 18, enforcing principles of reproductive autonomy that have long been foundational to the program.
- Requires all Title X services to be provided in a manner that protects the dignity of each patient.
- Ensures equitable and quality service delivery by realigning Title X service provision with nationally recognized standards of care.
In terms of modernizations, the Biden-Harris rule also:
- Requires all Title X services to be provided in a manner that is client centered, culturally and linguistically appropriate, inclusive, and trauma informed.
- Expands use of telehealth in the Title X program, clarifying that telehealth services constitute appropriate service delivery, and allowing both clinical and nonclinical services (e.g., counseling and education) to be provided via telehealth methods.
- Explicitly allows Title X services to be provided under the direction of “clinical service providers” (as defined by OPA’s Family Planning Annual Report), as opposed to solely being provided under the direction of physicians.
- Requires Title X sites to provide a referral or prescription if they do not have a patient’s contraceptive method of choice.
- Requires all Title X services to be inclusive and recasts the program as one that serves gender-inclusive “clients.”
- Expands antidiscrimination protections for patients by expanding the definition of “sex” to “sexual orientation, gender identity, and sex characteristics” to be consistent with Section 1557 of the Affordable Care Act and other legal and policy authorities.
While the Biden-Harris rule is largely a victory for reproductive autonomy and for family planning providers and patients across the country, there is one major way in which the rule falls short. The Biden-Harris rule failed to include a provision protecting providers from discrimination within the program. In cases where the Title X grant money for a state flows through a state department that is beholden to restrictive state laws for fund disbursement or leadership opposed to sexual and reproductive health, effective providers could still be vulnerable to discrimination or coercion over their funding. Family planning providers that offer abortion, including Planned Parenthood, are not targeted because they are subpar providers; in fact, research reveals the opposite. Rather, these providers are targeted because they have been unfairly turned into a political lightning rod, drawing the ire of conservatives who oppose abortion rights.
The Biden-Harris administration should adopt regulations to protect providers caught in these political fights, ensuring that the relationship between a Title X grantee (the entity that receives and administers a grant) and a subrecipient (an agency that contracts with a grantee to provide services to patients) cannot be altered or ended for political reasons. In the longer term, Congress should codify provider nondiscrimination provisions in the Title X statute to shield providers from the political winds of future presidential administrations.
Reversing the damage of the Trump-Pence gag rule is not as simple as flipping a switch. It will take time, commitment and additional investment of resources to rebuild this crucial program. Central to this effort, Congress must deliver robust funding for Title X to serve its patients and build back the network after enduring the twin destructive forces of the Trump-Pence gag rule and the pandemic. For fiscal year 2022, the US House of Representatives passed an appropriations package that included $400 million for Title X and the Senate recently allocated $500 million. While these figures are far below the $954 million advocates have called for, they would still represent a historic increase for the Title X program at a time when a renewed—even if overdue—investment would help the network rebuild and provide essential family planning services to the patients that rely on it.