President Biden’s Department of Health and Human Services is Subverting Congress’s Protection Prohibiting Public Funding for Abortion and Threatening Healthcare Workers with Mandatory Abortion Referrals

Conscience rights protected by Congress in law are at risk due to recent Department of Health and Human Services’ (HHS) administrative rules. Despite Congress having written into law an explicit ban on using public Title X funds for abortion, HHS’s 2021 Rule subverts Congress and functionally supports abortion under the banner of “family planning services”.

At issue is whether HHS can remove Title X’s program integrity rule and mandate that healthcare providers make abortion referrals upon a patient’s request. The Sixth Circuit Court of Appeals is considering this issue in State of Ohio v. Becerra after HHS changed its administrative rules in 2021 for the Title X program, which provides federal funds for family planning services. 

Since Title X’s enactment in 1970, the program has included an explicit prohibition on using funds “in programs where abortion is a method of family planning.” Americans United for Life filed a friend-of-the-court brief which analyzes the origin of this provision, contextualizing it as an early conscience protection that intentionally excludes abortion entirely from the scope of Title X. Over the past fifty years, Congress has enacted numerous conscience protections in the abortion context. For healthcare workers and institutions, these safeguards included the Church, Coats-Snowe, and Weldon Amendments. For taxpayers, Congress enacted the Hyde Amendment which restricted abortion funding to protect taxpayers’ conscientious objections to taking human life. Title X’s conscience provisions work much in the same way, protecting both healthcare workers and taxpayers. In enacting its 2021 Rule, HHS improperly failed to account for this legal history and the 2021 Rule’s tension with statutory conscience protections. 

“The United States has a strong legal tradition of protecting conscientious objections to taking human life,” explains Carolyn McDonnell, AUL Staff Counsel. “Within this robust legal history, Congress intentionally chose to exclude abortion from the scope of the Title X program. The 2021 Rule subverts this provision, threatening healthcare workers with mandatory abortion referrals and discarding program integrity rules that ensure Title X funds do not subsidize abortion.”