As the Biden Administration Continues to Repair the Damage, New Threats Emerge

As each year draws to a close, there’s a lot lawmakers want to get done before time runs out. This year is no exception, with some things moving faster than others.

Appropriations Process Stalls

The Fiscal Year 2022 appropriations process continues to move forward, albeit at a lurching pace. As a reminder, the House passed a bill back in July that covered funding and policy provisions for international family planning. Those provisions included:

• increasing funding for bilateral family planning to $760 million ($185 million above the prior year);
• a U.S. contribution for the United Nations Population Fund (UNFPA) of $70 million ($37.5 million above the prior year);
• Global HER Act language to permanently repeal the Global Gag Rule; and,
• removal of the Helms Amendment (though it remains part of permanent statute).

The Senate had not yet taken up its version of the bill by the September 30 end of FY 2021, so late that night, President Biden signed a Continuing Resolution extending funding at current levels through December 3.

On October 18, the Senate Appropriations Committee released a draft funding bill proposing $705 million for family planning programming, including $55 million for UNFPA. Neither level is as high as the level proposed by the House, but it’s a considerable increase over current levels—and it’s actually higher than the amount requested by the Biden administration. Notably, the bill also contains the Global HER Act language to permanently repeal the Global Gag Rule, an enormous victory for those of us who oppose the policy.

Given the time constraints, it’s unlikely the Senate bill will go through the full mark-up and floor vote process. More likely, the draft bill will go to the conference committee along with the House-passed bill. The final funding number will likely fall somewhere between the two bills. And while the fact that the Global HER Act language is in both bills should mean it’s automatically included in the final bill, there are no guarantees. Advocates are working hard to ensure that provision isn’t stripped as part of any policy compromise.

We don’t expect to see the ultimate conclusion to this process until late December.

Biden Reverses Title X Rule

On October 4, the Department of Health and Human Services released a final rule revoking regulations imposed on Title X family planning providers by the previous administration. Under that policy, which went into effect in August 2019 after months of legal challenges, Title X providers were forbidden from referring patients for abortion services unless a patient explicitly asked for such a referral and were allowed to refuse to provide one on “moral grounds.” Providers were also no longer required to comprehensively discuss all pregnancy options, were allowed to pick and choose which family planning options they wanted to offer their patients, and were required to attempt to involve family members in decisions made by minors. Additionally, clinics were required to draw a “bright line” between abortion services and all other services: separate accounting, physical spaces, staff, contact info, patient health records, etc. Previously, clinics that received Title X grants for family planning services were able to offer abortion services with separate, non-federal funding, in the same facility, by the same staff.

The consequences to the program in the wake of the rule were devastating. An estimated 981 clinics left Title X in 2019 alone, slashing the program’s capacity by half and jeopardizing care for 1.6 million patients. Six states (Hawaii, Maine, Oregon, Utah, Vermont, and Washington) were left with no remaining Title X-funded providers.

The rule was an obvious and blatant attack on Planned Parenthood, which withdrew from the Title X program the day it went into effect. Until that point, Planned Parenthood clinics covered the family planning needs of 41 percent of women who rely on Title X.

The new language revoking the previous rule took effect on November 8, which means that Planned Parenthood and other providers forced out of the program may begin applying to re-enter. Patients will once again have access to the full range of options when they choose a Title X clinic for their care.

House Passes Women’s Health Protection Act

In the wake of the Supreme Court’s shocking refusal to block the blatantly unconstitutional Texas abortion “bounty” law (SB 8), the House of Representatives voted to pass H.R. 3755, the Women’s Health Protection Act (WHPA), on September 24.

Sponsored by Rep. Judy Chu (D-CA), the bill establishes a statutory right to abortion access free from medically unnecessary restrictions. It invalidates many of the state-level restrictions that have been enacted over the last decade, including six-week bans, 20-week bans, biased or inaccurate “counseling” requirements, mandatory ultrasounds, hospital admitting privileges requirements for doctors, and waiting periods.

WHPA passed 218-211, with only Texas Democrat Henry Cuellar joining all House Republicans to vote against it. Passing the bill in September was intended as a direct response to the Texas law, which empowers private citizens to sue anyone who “facilitates” an abortion after cardiac activity can be detected—at around six weeks into pregnancy. Although the Justice Department has stepped in to litigate the law (see In the News, page 6), there is little that Congress can do about it at the moment.

There is a Senate version of the Women’s Health Protection Act (S. 1975), led by Sen. Richard Blumenthal (D-CT), but as long as the upper chamber continues to hold to the 60-vote threshold to defeat the filibuster and pass legislation, there’s no chance of the bill becoming law in the current Congress.

Supreme Court to Hear Challenge to Roe v. Wade

After postponing its private conference on the case for months, the Supreme Court has announced that it will hear oral arguments on December 1 in Dobbs v. Jackson Women’s Health Organization, a case centering on Mississippi’s attempt to ban abortion after 15 weeks. The law contains exceptions only for life-threatening emergencies and fetal abnormalities, and state legislators have been clear about wanting to use it as a vehicle to challenge the central holding of Roe v. Wade.

Although Chief Justice John Roberts voted with the Court’s liberal bloc last year in a case about a Louisiana law requiring doctors who perform abortions to have admitting privileges at local hospitals, he did use that case to signal that he would be willing to consider restrictions or bans based on other grounds. Additionally, since that case, the composition of the Court has changed, with Justice Amy Coney Barrett replacing the late Justice Ruth Bader Ginsburg.

This case is the most significant threat to Roe in decades. A ruling is expected in June 2022.