Texas Doctors Object to WHP "Gag" Rule

Texas doctors' organizations are objecting to a proposed rule that would prohibit Women's Health Program (WHP) providers from discussing abortion with their patients.

The proposed rules for the new state-only funded WHP exclude doctors and other health providers who provide or "promote" elective abortions, even with their patients who are not covered by WHP. The term "promote" includes discussing, providing counseling about, or referral for abortion.

In a letter to the state Department of Health Services, leaders of the Texas Medical Association, Texas Academy of Family Physicians, Texas Association of Obstetricians and Gynecologists, American Congress of Obstetricians and Gynecologists, and the Texas Pediatric Society called the ban a "gag order" that interferes with doctors' medical judgment about what information is in the best interest of their patient. "The relationship between patient and physician is based on trust and creates the physician's ethical obligations to place the patient's welfare above his or her own personal politics, self-interest and above obligations to other groups," states the letter, signed by presidents of the 5 associations.

WHP Background

WHP provides preventive care, cancer and other screenings, and contraception to about 130,000 low-income Texas women each year, but does not provide abortions. Since 2007, WHP has been funded 90 percent by the federal government (about $35 million annually). However, new rules enacted by the 2011 Texas Legislature exclude affiliates of abortion providers (i.e., Planned Parenthood clinics) from participating in the program. This exclusion of willing providers is not compatible with the federal Medicaid statute, so the federal Department of Health and Human Services will discontinue its funding of the program by November. The Governor and the Texas Health and Human Services Commission (HHSC) have moved forward with the state-only-funded WHP and proposed these new rules.

The Provider Shortage

Unfortunately, as the doctors' organizations point out, the new rules banning discussion of abortion are likely to discourage physicians from participating in WHP. This new state-only WHP will need many providers to be able to succeed, but recruiting providers is already difficult.

If Planned Parenthood clinics are excluded, preventive health care may be jeopardized for approximately 52,000 women, according to a George Washington University study. Many of the other existing WHP providers have suffered severe funding cuts from the Department of State Health Services' Family Planning program, so that their capacity to participate in WHP is limited. The Federally-Qualified Community Health Centers are unlikely to be able to absorb so many patients.

What's Next?

Planned Parenthood affiliates, which have been serving nearly half of WHP clients, have sued in federal court to stop their exclusion from WHP. While the case proceeds, an injunction keeps Planned Parenthood in the program.  The outcome of the lawsuit will not be known until at least November. The situation could also change when the 5^th U.S. Circuit Court of Appeals makes a ruling.

Even after the federal court decisions, what will happen regarding WHP is uncertain. Appeals of any judicial decision in the case are likely, and they could extend the period of uncertainty for many more months. Moreover, if Planned Parenthood prevails in its lawsuit, the state could decide to discontinue the program, which seems likely, given statements from the Texas Attorney General. If the state prevails, then WHP will have a tremendous challenge to find enough medical providers to fill the need.

Either way, low-income women in Texas are likely to have difficulty accessing the preventive care and birth control that they need.