//  4/5/17  //  Commentary

Last week, Vice President Mike Pence cast a tie-breaking vote in the Senate in support of a bill that would allow states to refuse to provide family planning grants to health care providers for any reason, including because an eligible provider performs abortions or counsels women about abortions.  The Senate had voted 50-50 on the bill, which would overturn an Obama-era regulation that prohibits States from denying Title X family planning grants to organizations for reasons other than their ability to provide family planning services. 

Federal law already prohibits federal funds from being used for abortions. The bill that Pence voted for would go beyond that:  It would allow states to terminate family planning grants to organizations that are “focused on reproductive health”—i.e., to terminate Title X grants to organizations that provide access to certain kinds of contraception, and to organizations that provide any access to or counseling related to abortion, even when funded with the organization’s own money.  There is no doubt that the bill is intended to, and will be used to, deny family planning grants to Planned Parenthood, and other similar organizations.

Perhaps for this reason, that is how Democrats and the media are describing the bill when they discuss it. That is, they depict the bill as a Republican-led effort to “defund Planned Parenthood.”  That description is perfectly understandable, given that there is no question that Republican-controlled state legislatures will use the bill to do exactly that.

But this description also plays into the Republicans’ hands by feeding into their base’s apparent desire to launch a full scale attack on reproductive justice.  And because the Democrats have been fairly inept at messaging (anyone remember “Make America Sick Again”?), here are some thoughts on messaging about the bill.

The bill and the regulation that the bill would overturn aren’t only about Planned Parenthood.  The final agency action announcing the regulation only mentions “Planned Parenthood” when it cites cases in which Planned Parenthood was a party, and when the agency responds to a comment that brought up Planned Parenthood.  The final agency action likewise doesn’t mention abortion except to note that federal law already prohibits federal funds from being used for abortions, and in response to a comment.  Nor does the regulation mention “contraception” (except in citations to secondary sources) or “birth control” (aside from in its “list of subjects”).

The bill and the regulation that it would overturn are about health care and health care providers. Specifically, the bill is about whether Congress can deny you access to perfectly excellent health care and perfectly qualified and convenient health care providers for no reason at all. The entire point of the bill is to allow states to deny funds to health care and health care providers for reasons other than the quality of the care they provide.  But why should people be denied access to health care for reasons other than the quality or cost of the care?  That idea is kind of bonkers. 

We don’t select health care or health care providers for reasons other than the quality, convenience, and cost of that care.  It isn't unreasonable to think that Congress and the states shouldn’t be limiting access to health care or health care providers for reasons other than the quality, convenience, or cost of that care.

But that’s exactly what this bill would do.  The bill would overturn a regulation that prohibits states from denying federal family planning funds to eligible programs for reasons other than the program’s ability to perform and provide family planning services (more specifically, their ability to perform and provide family planning services other than abortion, since federal family planning funds can’t be used for that purpose).

Should Congress and the states be limiting access to health care or health care providers for reasons that are completely unrelated to the quality, convenience, or cost of that care? Would it be okay for Congress not to allow tax exemptions for charitable donations to the Red Cross because Mike Pence prefers the color blue?  Would it be okay if Congress decided to bar any federally funded insurance from being used at CVS minute clinics because Rite-Aid gave a lot of money to certain representatives? Would it be okay for Congress to declare that federally funded insurance can’t be used to cover physical therapy if the physical therapist sometimes uses acupuncture, or to declare that federally funded insurance can’t be used to cover mental health professionals who sometimes prescribe Xanax?  Would it be okay for Congress to declare that federally funded insurance can’t be used to cover pain management programs that occasionally prescribe painkillers?

No. Nobody would think that would be acceptable, or even semi-decent policy.  It wouldn’t be health care policy at all.  A sensible health care policy doesn’t involve the government going around arbitrarily limiting access to health care, or limiting access to quality, cost-effective, and available health care providers for reasons unrelated to the quality, convenience, or cost of that care.

Some commenters to the regulation asked why states should have to fund family planning services that are no better than family planning services that are opposed to abortion (and also opposed to some forms of contraception). But that’s not the right question. The question is why should states be allowed to foreclose access to family planning services that are no worse than other family planning services in the quality of family planning services they provide.

In any case, there is pretty good evidence that the family planning services that states are so eager to defund are better family planning services, at least for some purposes and some populations: The targeted family planning services may be the only family planning services in certain areas or regions.  Or consider the clientele of the targeted family planning services—an astounding seventy-five percent of their clientele have income at or below 150% of the federal poverty line (i.e., they make less than $20,000 a year). The targeted family planning services also serve a large proportion of young women, immigrant women, and women of color.

So, Democrats, let the Republicans dog-whistle to their base about beating up on Planned Parenthood. For you, the issue is one of health care and access to quality health care providers.


A Note Of Caution About Timbs v. Indiana

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The concurring opinions in Timbs v. Indiana raise some concerns about how (some of) the Justices would address the Trump administration’s treatment of undocumented minor women.

Leah Litman

U.C. Irvine School of Law

Chief Justice John Roberts’ Next Move Will Tell Us A Lot

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Constitutional Accountability Center

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Leah Litman

U.C. Irvine School of Law