AG Herring files amicus brief to support Biden-Harris Administration rule broadening the scope of Title X family planning grants

RICHMOND (November 30, 2021) – Attorney General Mark R. Herring has filed an amicus brief in Ohio v. Becerra in support of the new Title X rule promulgated in 2021 by the U.S. Department of Health and Human Services (HHS) that removes harmful restrictions put in place by the Trump Administration. The new rule will result in the distribution of Title X funds to a greater number of family planning and related preventive health service providers that deliver care to millions of low-income or uninsured individuals and others. Attorney General Herring has joined a coalition of 24 attorneys general in filing the amicus brief.

Title X is the only federal grant program that funds family planning and counseling programs to help patients access contraception, as well as breast and cervical cancer screenings, screenings and treatments for sexually transmitted infections, and other related health services.

“Title X has been instrumental in giving women in low-income communities access to family planning programs, and preventative and reproductive healthcare, but unfortunately, with its ‘gag rule’ the Trump Administration worked hard to limit a woman’s ability to make her own choices about her body,” said Attorney General Herring. “The Biden-Harris Administration’s new Title X rule will remove those harmful Trump-era restrictions and distribute Title X funding to a greater number of healthcare providers, in turn helping more families across the country. I am proud to join my colleagues in supporting this new Title X rule that will give low-income and uninsured individuals in Virginia and around the country better access to healthcare.”

Attorney General Herring’s brief supports the new HHS rule, issued in 2021, that broadens the scope of federal grants under Title X, in part, by eliminating the harmful provisions of the 2019 Trump Administration rule — also known as the “gag rule.” The 2019 rule 1) imposed onerous requirements for physical separation between abortion and non-abortion services at clinics that provided abortion services and 2) prohibited clinicians from providing referrals to abortion providers, even when directly requested by the patient. By contrast, under HHS’s new 2021 rule, Title X funds can, once again, go to clinics that do not physically separate non-abortion and abortion services, and that provide referrals to abortion providers at a patient’s request. The coalition’s brief argues for the court to reject a request by a group of plaintiff states for a preliminary injunction of the 2021 rule.

Attorney General Herring and his colleagues argue that the plaintiffs’ proposed injunction would put patients and providers in harm’s way by returning to the 2019 Trump Administration rule, which caused dramatic loss of Title X providers and a substantial decrease in patient visits and health care services provided. Underserved communities were especially impacted by the loss of essential care, particularly low-income individuals, minorities, LGBTQ+ individuals, individuals living with disabilities, minors, and those living in rural areas.

The 2021 HHS rule allows lost providers to reenter the Title X program and improves client outcomes by providing greater access to and a wider range of health care services and promotes health equity by emphasizing efforts to reach underserved communities.

Attorney General Herring and his colleagues have fought hard to protect Title X funding. In March 2019, Attorney General Herring sued the Trump Administration challenging the constitutionality of its Title X “Gag Rule” that restricted healthcare providers that receive certain federal funds from counseling or making referrals for abortion. After the U.S. Court of Appeals for the Ninth Circuit upheld the new “gag rule”, Attorney General Herring filed a petition that asked the U.S. Supreme Court to hear the case. Separately, Attorney General Herring filed an amicus brief in a different lawsuit brought by the city of Baltimore against the Trump Administration’s Title X rule. The U.S. Court of Appeals for the Fourth Circuit struck down the rule – enjoining it in Maryland while it remained in place across the rest of the nation – after which the Trump Administration filed its own petition asking the Supreme Court to hear the case. In March 2021, the coalitions in both cases joined with the Biden-Harris Administration to ask the Supreme Court to dismiss both cases, while the Biden-Harris Administration acted to rescind and replace the rule. In May 2021, the Supreme Court entered the order to dismiss both cases and denied efforts by additional parties to step in and defend the gag rule. At the same time, Attorney General Herring sent a comment letter to HHS applauding the agency’s proposed rule to undo the harmful, Trump-era Title X “gag rule.”

Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia.