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05/22/2018

The Land of the Gagged and the Home of the Complicit: Domestic Abortion Gag Rule is Unethical

by Craig Klugman, Ph.D.

On his fourth day in office, Trump reinstated the Mexico City Rule. The MCR was originally declared by Ronald Reagan in 1984 to prohibit U.S. federal funds from going to non-governmental health organizations if they provide, promote, refer, or mention abortion services unless abortions were given at a separate facility. Last week, Trump announced that he was going to issue a domestic gagrule that would prohibit health care providers who receive federal funding from performing or mentioning abortion as an option to women. In other words, he was going to bring the gag rule home.

The 129-page proposed rule was released by the Department of Health & Human Services today (May 22). The changes state are meant to “establish a broad prohibition on funding, directly or indirectly, activities related to abortion as a method of family planning.” To achieve this aim, DHHS recommends a physical separation between abortion activities and family planning services, meaning that essentially there has to be a separate office for abortions. Similarly, physicians may not advise on abortion or refer patients to abortion providers, unless the patient is the one who raises the issue and states this is what she wants.

Title X programs may not directly or indirectly facilitate, promote, or encourage abortion in any way. For example, referral is an integral part of the provision of any method of family planning. When provided for abortion, a referral necessarily treats abortion as a method of family planning and runs afoul of the statute. Similarly, Title X programs that subsidize other programs where abortion is a method of family planning, through infrastructure building, cost sharing, or otherwise, run afoul of the statute. 

The rules say that family planning must be non-directive and “Referrals for abortion are, by definition, directive.”

Like me, you may be thinking that it would only be a short time before such a rule was tried in a court and an injunction would be issued until it was heard. Normally, I might agree except that the U.S. Supreme Court already ruled on this issue. In 1990, the USSC ruled in Rust v. Sullivanthat bans on discussing abortion in “federally funded family planning clinics” was legal. Given the conservative turn of the court this last year, it is unlikely they would revisit the issue or overturn precedence.

Art by Craig Klugman

Although the administration has only issued a threat to create this rule and has not actually issued it as of this writing, I thought it would be useful to consider what the world of medicine might look like if such a rule were indeed enacted. The purpose of such a rule would be to defund Planned Parenthood, a long stated goal of the conservative movement. However, abortion represents only 3% of Planned Parenthood’s healthservices. Most of their work consists of sexually transmitted infection testing and treatment (47%), contraception (28%), women’s health services (14%), and cancer screenings and prevention (7%). Thirty-seven percent of the organization’sincome comes from government reimbursements and grants, about equal to the amount they get in private contributions. Planned Parenthood might have to close some clinics, increase fundraising, and increases costs to patients who can pay, but I imagine it will continue to help as many women as it can.

Most of the pundits believe that the gag rule would effect only organizations that receive Title X funding. These federal grants “support family planning and adolescent pregnancy prevention and care programs.” Already, federal law prevents federal dollars from being used to pay for abortions. If a clinic provides abortions, it must be sure that the payment comes from non-federal sources. The gag rule, however, would remove all government money from an organization that provides abortions from non-government funds or that even discusses the “A” word. The only way to get federal funding would be to hide from women that abortion is a safe and legal medical option.

Can you imagine a situation where a physician is prohibited from talking about safe, legal medical options to their patients? There are some analogies. In 26 states, legislatures require woman be told medically inaccurate information about their pregnancyand about abortion before having the procedure. Three states require that doctors say a medicated abortion can be reversed after the first pill (NOT TRUE). Four states require doctors tell women that an abortion has a very high risk of destroying fertility (NOT TRUE). Five states require doctors to tell patients that there is a strong link between abortion and breast cancer (NOT TRUE). Eight states require doctors to say that abortion causes a negative stress emotion (According to Katie Watson’s Scarlet A, 95% of women do not regret their abortion). Thus, in half the states, the legislatures require doctors to lie to their patients about the risks of an abortion. Doctors usually give the required verbal (and sometimes written) scripts with a warning that the information is not true but the government requires it. Although this compelled speech is unscientific and unethical, it does not deny women an abortion, just tries to coerce them away from it.

In 2011, Florida officials passed a law banning physicians from asking parents if there was a gun kept in the home where a child resides. The ban was overturnedin 2017. In Illinois, a law required that all health care providers inform women of all of their available options, including abortion. This law hit “crisis pregnancy centers” particularly hard since most of them are religiously-oriented groups that are vehemently anti-abortion. The law is currently enjoined against one chain of such centerswhile the case makes its way through the courts. A U.S. Supreme Court ruling on a similar California lawis expected in June.

Legislatures are not the only bodies that try to control what health care providers can and cannot say. Some pharmaceutical benefit managers ban pharmacistsfrom telling patients when it might be cheaper to pay in cash rather than through their insurance for a prescription. Patients are not denied their prescriptions but they are denied knowing the lowest cost option for their prescription drugs. Several managed care plans prohibit doctorsfrom mentioning treatments (discussing, referring, or even telling patients about the gags) that are not covered under the insurance program. Some states have sought to end such practices by enacting laws prohibiting insurers from pushing such requirements. The government is acting to protect those who lack power, the citizen, in this instance.

For doctors, gag rules violate the fiduciary patient-physician relationship by destroying trust. They require health care providers to deliberately lie to their patients either be saying falsehoods or by omitting facts (like abortion exists). Or these requirements require a doctor to lie to the state and any licensing boards by saying they follow the law when they tell patients that they have to repeat the state’s lies. Either way, medicine is being forced into the center of the culture wars and women’s health is at stake. Keeping information from patients restricts their autonomy and their ability to make their own medical choices.

Who would be hurt most by this gag rule? Women. Specifically women with lower socioeconomic status. Seventy-five percent of Planned Parenthood patientsare women with incomes at or below the federal poverty line. PP estimates that they help prevent 579,000 unintended pregnancies and prevent 197,000 abortions with their family planning services. Women who are financially well off (or who were impregnated by financially well-off men) will have access to women’s and reproductive health care by paying out of pocket, having private health insurance that covers these costs, and by traveling to places where abortions are legal and available. Poor women are the ones affected most by these programs—women in poverty, women in toxic relationships, women who already have children whom they cannot afford to raise, and women who lack the freedom to make their own decisions. Banning funding of abortion does not ban abortion, it just forces women to seek out riskier methods to get them. This ban would have one effect: endangering women.

This is the time to lobby our elected officials on the federal level to pass a law preventing such a ban from taking place (okay, I realize this is highly unlikely to happen in the current Congress). We can urge state legislators to support laws that require abortion and family planning in all health care plans sold in the state and to set up state funds to help pay for abortions and contraception. We can be sure to go to the polls. We can be sure to offer comments on the proposed rule.

The rule release also opens a period for public comment (not that this administration has shown a willingness to listen to comments). There are instructions on how to leave messages, though the document, interestingly, leaves out a due date for comments (perhaps in an attempt to dissuade people from commenting). Even more interesting, the rule is not listed in the federal comments database (though that might not show up for a day or 2? Search for “HHS-OS-2018-0008). 

DATES: Comments on this proposed rule are invited. To be considered, comments must be received by [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

ADDRESSES: Written comments may be submitted to the Department of Health and Human Services, Office of the Assistant Secretary for Health, Office of Population Affairs, as specified below. Any comment that is submitted will also be made available to the public. 

Warning: Do not include any personally identifiable information (such as name, address, or other contact information) or confidential business information that you do not want publicly disclosed. All comments may be posted on the Internet and can be retrieved by most Internet search engines. No deletions, modifications, or redactions will be made to the comments received. Comments may be submitted anonymously. 

Comments, identified by “Family Planning” may be submitted by one of the following methods: 

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. 

Mail or Hand Delivery: Office of the Assistant Secretary for Health, Office of Population Affairs, Attention: Family Planning, U.S. Department of Health and Human Services, Hubert H. Humphrey Building, Room 716G, 200 Independence Avenue, SW, Washington, D.C. 20201. 

Good medicine is based on empirical facts, experience, and compassionate caring. It should not be based on political whims, practicing unlicensed/uneducated medicine, or disregarding the health needs and rights of 51% of Americans.

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