Patrick Semansky/AP Photo
Health and Human Services Secretary Xavier Becerra holds a press conference on June 28, 2022. He will soon issue rules implementing President Biden's executive order protecting abortion.
Anti-choice restrictions have impaired women’s reproductive health, in states that respect abortion rights as well as in states that restrict them. As I wrote last week, thousands of hospitals in the North, Midwest and West ban or severely restrict abortion, either because their executives and lawyers fear controversy or because some administrators, clinicians or trustees don't want the hospital associated with abortion. Other hospital leaders, I reported, are courageously pushing back.
But this is just one part of the story of covert abortion restrictions. A second arena of contention is the ongoing trench warfare between federally funded community clinics and efforts by the anti-abortion right to prohibit all such clinics from offering the full range of reproductive services. This conflict plays out in states that allow abortions as well as in ones that prohibit them, because of efforts by anti-abortion zealots to stretch the reach of the Hyde Amendment, which prohibits federal funding of abortions.
Two important federal programs that support women’s reproductive health are Title X grants for family planning, and funding for some 1,400 community health centers funded under both Medicaid and under Sec. 330 of the Public Health Act, which supports Federally Qualified Health Centers (FQHCs). These clinics serve some 27 million patients in low- and moderate-income communities, regardless of people’s ability to pay or their immigration status.
Until the Trump administration, clinics that got family planning grants under Title X of the Public Health Act were explicitly permitted to offer abortion services, as long as they kept federal and non-federal funding segregated. In 2019, President Trump’s Department of Health and Human Services (HHS) prohibited Title X grantees from offering the full range of FDA-approved contraceptive measures, including “morning-after” pills, and prohibited any such grantee from offering abortion services, even with separate funds.
According to an authoritative article in the journal Health Affairs, this prohibition caused some grantees to drop Title X funding and reduced the population served at family planning clinics from 3.9 million in 2018 to just 1.5 million in 2020. The Biden administration reversed these rules in October 2021.
But federally supported health centers taking money under Sec. 330 are in a tougher spot. Both Democratic and Republican administrations have discouraged them from providing abortions with separate funds, even if the patient has insurance or pays out of pocket, on the premise that the clinic’s overhead and facilities are federally financed. A few clinics have managed to do workarounds, but it’s financially burdensome and a legal complication.
One doctor who performs abortions as a federally supported health center told me, “I have so many colleagues around the country who come up against administrators who say their clinic just can’t provide abortions, either because it’s a hassle or because the administrator doesn’t want the controversy.” In fact, some clinics have been investigated and were allowed to perform abortions as long as they strictly segregated funds, contrary to the guidance given by both HHS and by the National Association of Community Health Centers, which worries about alienating Republicans and centers in anti-choice states.
When the woman attempted to pick up her prescription, the pharmacist informed her that he couldn’t give it to her because it might cause an abortion.
When HHS Secretary Becerra issues new rules no later than August 7 to carry out President Biden’s executive order of July 8 on reproductive rights, he could put federally subsidized Sec. 330 health centers under the same rules as Title X grantees, enabling them to perform abortion services as long as no federal funds are used. “If it can work for Medicaid and for Title X,” says this clinician, “Washington should apply the same rules to FQHCs.”
There is near-hysterical hyper-vigilance by the right on the issue of federal funding for abortion, direct or indirect. During the Obama years, a mini-scandal was hyped by anti-abortion activists and their Republican allies. Three AmeriCorps volunteers had been working as doulas in abortion clinics. Republicans, who at the time had a majority in Congress, claimed that this violated the Hyde Amendment and threatened to pull funding from several programs. Obama’s HHS panicked and ended up prohibiting AmeriCorps volunteers from working in any federally funded clinic at all.
Democratic presidents have been uneasy about pushing back against restrictions for fear that Republicans in Congress will resist funding these programs entirely. Despite these controversies, however, these federally funded safety-net clinics have broad local political support, and normal funding did continue under Trump.
FQHCs provide essential care that would otherwise be unaffordable to millions, and they do appeal to Republicans in some respects. One clinician told me, “Republicans love FQHCs because they enable health care to be segregated by race and class. The middle class doesn’t have to sit in a waiting room with poor people.” When Republicans during the Trump presidency tried to bar Planned Parenthood from getting federal support, they argued that FQHCs could fill the service gap, but of course not for abortion services.
In reality, even without adding abortion services, FQHCs are woefully underfunded relative to the need. “These clinics should be offering every preventive reproductive service, including the morning after pill and LARCs [long-acting reversable contraception], as well as the full range of maternal care,” says Prof. Sara Rosenbaum of George Washington University, one of the nation’s leading experts on medically underserved areas and community health centers. The same areas that are deserts for abortions, she adds, are deserts for contraceptive services and maternal care, and good health care generally.
Even though Democrats have the narrowest of working majorities in Congress, the Dobbs decision overturning Roe v. Wade and its secondary effects on women’s health are deeply unpopular outside of anti-abortion states. So this seems like a time to be resolute in limiting the damage to women’s health and choice, not a time to be intimidated.
Some states are leading the way. Sixteen states mandate their Medicaid programs to cover all abortion services, using state funds. More could so do. Even though Medicaid is a joint federal-state program, courts have upheld the right of states to cover abortions under Medicaid as long as no federal funds are involved. This would seem to be a model for allowing clinics that are partly federally funded to provide abortions.
In late June, California Gov. Gavin Newsom signed a bill to protect California abortion providers from liability or prosecution from out-of-state bans on abortions. He also announced an agreement with Gov. Kate Brown of Oregon and Gov. Jay Inslee of Washington to establish a West Coast compact to protect providers and patients from the legal maneuvers of anti-abortion states. Newsom has also proposed a $150 million fund to help underwrite travel expenses for the estimated 8,000 to 16,000 women from abortion-ban states expected to come to California for an abortion. Other states, like Connecticut, have made similar pledges to providers and patients.
As I reported last week, some states are reviewing whether hospitals and clinics are adequately providing women’s reproductive health services. In Massachusetts, there is a complete dearth of medical facilities providing abortion services on Cape Cod and elsewhere in the southeastern part of the state. If you live in Provincetown, on the tip of Cape Cod, it is more than 100 miles to the nearest facility that provides abortion care. Nearby Plymouth Hospital, which has rebranded itself as Beth Israel Deaconess Hospital in Plymouth, won’t provide abortions except in medical emergencies, even though the parent Beth Israel hospital in Boston provides the full spectrum of abortion care. Dr. Jennifer Childs-Roshak, president and CEO of Planned Parenthood League of Massachusetts, told me, “Southeastern Massachusetts is an abortion access desert. Abortion is health care, and access should not be based on one's zip code, identity, or income level.”
The Hyde Amendment, and the anti-abortion zealots energized by the Dobbs ruling, will continue to undermine reproductive rights in the absence of strong pushback by the federal government, states, and corporate leaders. The Prospect has learned of an incident in a Northeastern state where abortion is legal, involving a woman who was denied a prescription for a medication abortion by an anti-choice CVS pharmacist. When the woman attempted to pick up her prescription, the pharmacist informed her that he couldn’t give it to her because it might cause an abortion. This is one of a troubling set of stories involving access to women’s health.
CVS corporate media relations confirmed the incident and told me, “We have policies in place to ensure no patient is ever denied access to medication prescribed by a physician based on a pharmacist’s individual religious or moral beliefs. In this instance, the pharmacist did not notify us of his beliefs in advance and did not follow company policy. A member of our management team spoke with the patient about her experience and apologized for what occurred. Action is being taken and we are reminding our pharmacy teams about our reasonable accommodation request process and our requirement to ensure patients have prompt access to legally-prescribed medications.”
This is progress of a sort. The larger point is that this trench warfare will continue. The anti-abortion zealots are relentless, and defenders of reproductive rights need to be at least as resolute. That includes every state government that supports reproductive choice, every hospital that cares about patients’ wellbeing—and the Biden administration.
