The Department of Health and Human Services overlooked one key thing, and it proved to be fatal to their goal.
Earlier this month, the U.S Court of Appeals for the Ninth Circuit delivered a resounding victory for reproductive health rights when it issued a ruling in Planned Parenthood v. U.S. Department of Health and Human Services. It also delivered a resounding push back against the Trump administration, which has made a singular focus of attacking even the most celebrated and effective reproductive health care measures.
In this lawsuit, Planned Parenthood challenged a recent Trump administration mandate that the Department of Health and Human Services direct money to "abstinence-only" programs, which are notoriously ineffective at preventing teen pregnancy.
Trump's new rule radically changed the nation's approach to preventing teen pregnancy. The Obama administration took a multipronged approach to decrease teen pregnancy rates, funding organizations that promoted safer sex, addressed gender roles, worked to increase teen self-confidence, and more. And that approach helped teen birth rates reach an all-time low in the country in 2017.
In theory, that should have been the end of the discussion. HHS was employing an approach that had been wildly successful. But when Trump came into office, he brought with him a number of religious conservatives obsessed with controlling and suppressing teen sexuality rather than addressing it in a reasonable, healthy way — one that acknowledges that a substantial number of teenagers have sex.
The most notable of these religious conservatives is Trump's vice president, Mike Pence. Pence has spent much of his political career trying to shutter Planned Parenthood, and he doesn't even believe basic truths about reproductive health, like the fact that condoms prevent the spread of sexually transmitted diseases. That stance requires Pence to completely ignore reality, and government data from both the Food and Drug Administration and the Centers for Disease Control. As vice president, Pence has spearheaded a major shift in funding, from giving money to organizations that provide comprehensive reproductive health care to giving to organizations that refuse to provide birth control and spread misinformation about abortions based on their religious beliefs.
Of course, Pence isn't the only problem here. Before she joined the administration, HHS Deputy Assistant Secretary Diane Foley ran these types of organizations, also known as crisis pregnancy centers. She's also said demonstrating how to put on a condom could be sexual harassment.
Another Trump official, Valerie Huber, now a senior policy advisor in the Office of Global Affairs at HHS, was in charge of the National Abstinence Educators Association before she landed her government role. Huber has also been largely responsible for a key shift in messaging about abstinence-only education.
With these people at the helm, it was inevitable that HHS would shift to abstinence-only teen sexual education programs. They've even rebranded with Huber's preferred term, "sexual risk avoidance," to obscure their real goals.
However, HHS overlooked one key thing, and it proved to be fatal to their goal. The authorizing law for teen pregnancy prevention funding requires that a substantial portion of its program must use "evidence-based education models that have been shown to be effective in reducing teen pregnancy and related risk behaviors."
There's little to no evidence that abstinence-only education — even when it's called "sexual risk avoidance" instead — reduces teen pregnancy or decreases related risks. Rather, research shows that abstinence-only programs "are not effective in delaying initiation of sexual intercourse or changing other sexual risk behaviors." Worse, such programs "inherently withhold information about human sexuality and may provide medically inaccurate and stigmatizing information." They're so bad that the effectiveness of such programs "may approach zero."
HHS entirely ignored the law's requirements, which it cannot do. Even under Trump, agencies can't exceed the authority given to them by Congress, and they can't enact rules that are "contrary to clear congressional intent." But that's exactly what HHS did here. It enacted rules requiring organizations to focus on abstinence-only education, which flew in the face of the evidence-based requirement.
Because of that, the court here found that the rules were "contrary to the TPPP and hence contrary to law." This is the first ruling by a federal court of appeals on the matter and it "clear[s] the way for organizations to fight changes to funding rules."
There's the looming problem that these cases could eventually reach the U.S. Supreme Court, which is currently dominated by people like Justice Brett Kavanaugh, who would have blocked a detained migrant minor from getting an abortion. Justice Clarence Thomas is notoriously anti-choice and has begged the Supreme Court to take up an abortion case, presumably to overturn or thoroughly gut Roe v. Wade. And Justice Samuel Alito has explicitly said he does not think the Constitution protects the right to choose.
For now, however, Planned Parenthood is victorious. The court recognized that this administration cannot substitute its evangelical fervor for well-reasoned congressional goals. In the face of an administration wholly committed to disinformation about sexuality and reproductive health, facts and science won out.
Published with permission of The American Independent Foundation.