The Biden administration released a final rule Monday that would reinstate eligibility for federal family planning funds to organizations that provide abortions or abortion referrals.
The move, which would affect groups like Planned Parenthood, comes among a flurry of other action on abortion policy following two congressional hearings last week inspired by a Texas law banning nearly all abortions. The Texas Supreme Court announced Monday that it would not grant an emergency request to block the abortion ban.
The final rule, which will take effect on Nov. 8, would change how Title X, the nation’s federal family planning program, administers grants to states, clinics and other organizations that provide reproductive services. It was proposed in April.
The Trump administration finalized a regulation in 2019 barring Planned Parenthood and other organizations that provide or refer for abortions or share a physical space with an abortion provider from receiving federal funds through Title X.
Opponents of the Trump rule have argued that current law already prevents the providers from using federal funding to cover abortions except in cases of rape, incest or to save the life of the woman.
The final Health and Human Services rule would allow these previously barred organizations to qualify for future grants for family planning activities as long as they use only private funding for abortion care. It would also reverse the requirement that grantees not share a space with an abortion provider.
“This rule is a step forward for family planning care as it aims to strengthen and restore our nation’s Title X program,” said HHS Secretary Xavier Becerra.
It would go beyond a similar 2000 rule to include language that would require clinics to use culturally and linguistically appropriate language, offer referrals for primary care providers, and require sites that do not offer a full range of contraceptive methods on site to offer prescriptions for the products.
It would also add questions about equity to the grant review criteria under a goal of improving access in historically underserved areas.
“Advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality, is a priority for the Administration, including the Title X program and the Department,” said HHS Assistant Secretary for Health Rachel L. Levine.
The rule states that the 2019 rule led to 19 of 90 grantees exiting the program, including 11 state departments of health and independent organizations and eight Planned Parenthood affiliates.
Proponents of the rule praised the step as a victory.
"We are encouraged that longstanding, highly qualified providers that withdrew from the program and have been without critical funding for more than two years can begin to rejoin the program under these new rules," said Clare Coleman, president and CEO of the National Family Planning & Reproductive Health Association. "We also look forward to continuing to work with the administration in rebuilding the network and expanding access to family planning care for all who need it.”
But the final rule is likely to face pushback in the coming weeks.
Abortion opponents argued that funding for the Title X program as a whole did not decrease due to the Trump rule change, but rather was redistributed to organizations that fit the new guidelines.
The Trump administration rule was the subject of multiple lawsuits. The 9th U.S. Circuit Court of Appeals upheld the rule nationally, but the 4th U.S. Circuit Court of Appeals blocked the rule in Maryland, resulting in a circuit split.
The Supreme Court initially announced it would take up the case, but the Biden administration and the challengers asked for it to be dismissed.
The Trump regulation was similar to a Reagan-era rule. The Supreme Court upheld the Reagan rule in Rust v. Sullivan, saying it was legal for the government to "fund one activity to the exclusion of another.” But the rule did not go into effect under the Clinton administration.
It’s likely the Biden rule will also be challenged in court.