By Rachel N. Morrison, J.D.
On October 8, I was scheduled to meet with officials at the Department of Health and Human Services (HHS) and the Office for Management and Budget (OMB) to discuss the profound legal and policy defects in a proposed rule governing the Title X family-planning program. But instead of keeping their commitment and hearing my presentation, they canceled the meeting and officially published the rule yesterday. Hearing from members of the public with expertise in agency matters has been a routine practice of both Republican and Democrat administrations for decades. Yet it is clear that HHS under President Joe Biden and Secretary Xavier Becerra had already decided not only the content of the rule, but the date of its unveiling and the public-input process was a sham.
The new Title X rule governs how the federal government funds family planning services but contradicts statutory prohibitions on its funds from being used “in programs where abortion is a method of family planning.” If you are interested in how the rule unlawfully funnels money to Big Abortion, check out my colleague Roger Severino’s analysis here. This article focuses on the process, or more precisely, how the current administration has destroyed procedural norms to further the abortion agenda.
Public input is legally required and standard practice for agency rulemaking. It not only makes for better rules, but it furthers democracy by allowing the public to voice their concerns about agency rules that have the force of law, but that their elected representatives in Congress never voted on.
During the Trump administration, in which I served, meetings were routinely held with the public, leading to real improvements in rulemaking. And even where the administration did not take some people’s advice, at least the participants knew they were respected and heard.
The Biden-Becerra HHS finalized their new Title X rule at lightning speed. They broke norms by allowing only 30 days for public comments and then finalizing the rule in a mere four and a half months. By comparison, the Trump-era Title X rule allowed 60 days for public comments and took nine months to finalize. Because of the abbreviated public-comment period, HHS received 180,000 public comments compared to 500,000 under Trump. Nevertheless, HHS was still required to read, categorize, consider, and meaningfully respond to all of those comments, some of which were quite sophisticated and dozens of pages long. I myself submitted detailed written comments.
The Biden-Becerra HHS finalized their new Title X rule at lightning speed. They broke norms by allowing only 30 days for public comments and then finalizing the rule in a mere four and a half months. By comparison, the Trump-era Title X rule allowed 60 days for public comments and took nine months to finalize. Because of the abbreviated public-comment period, HHS received 180,000 public comments compared to 500,000 under Trump. Nevertheless, HHS was still required to read, categorize, consider, and meaningfully respond to all of those comments, some of which were quite sophisticated and dozens of pages long. I myself submitted detailed written comments.
After the public comment period closes, HHS begins drafting responses and then submits the draft final rule for internal review, which entails all HHS components with a stake getting a chance to submit edits or objections. After that, the updated draft rule has to go through an inter-agency review process, where each agency with a stake submits its edits and objections. The rule then goes back to HHS to consider those edits and suggestions. In case of irreconcilable differences, OMB acts as a mediator with potential input from the Department of Justice, White House Counsel, or the Domestic Policy Council. If you care about quality, open-mindedness, and process for major rules, this all takes time. If it’s all for show, it takes four and a half months.
A key part of the final review is done by the Office of Information and Regulatory Affairs (OIRA) in OMB which makes sure the economic analysis is sound and that all rulemaking processes and controls have been followed. Normally, when a rule is sent to OIRA, the public can schedule what are called “EO 12866 meetings.” These meetings are based on Executive Order 12866 issued by President Bill Clinton to ensure proper review of all significant regulatory actions, of which the Title X rule is clearly one.
I requested an EO 12866 meeting on the new Title X rule on September 15, two days after OMB received the rule. I planned to provide substantive and constructive feedback on the rule, especially as it related to the economic analysis — an area of particular concern for OMB. As I detailed in my written comments, there were significant errors in the rule’s regulatory impact and financial analysis, such as missing calculations, use of an erroneous baseline, and reliance on outdated and methodologically invalid sources, among others.
On September 20, OMB scheduled a meeting with me for October 8 — several days later than the dates I proposed to meet, but I promptly accepted their preferred meeting date. On Thursday, September 30 at 2:11 a.m., I received an automated email informing me that my EO 12866 meeting that OMB scheduled on a date of its choosing was canceled and that it would not be rescheduled because “the rule is no longer under review.” OMB lists its review of the rule as being completed on September 29.
OMB’s abrupt departure from established norms continues a pattern under the Biden administration. Just a few weeks ago, OMB rejected an EO 12866 meeting request on a different HHS rule relating to insurance regulations under the Affordable Care Act, including separate insurance payments for abortion services.
According to a former senior Trump OIRA official I talked with, refusing to take EO 12866 meeting requests, much less canceling a scheduled meeting, is a clear departure from longstanding OMB tradition and practice. Harvard Law School professor and former Obama OIRA administrator Cass Sunstein wrote that he was aware of “no case in which a meeting was turned down.”
When the Trump administration was finalizing its Title X rule, HHS and OMB held 14 EO 12866 meetings, many of which were with multiple groups and with pro-abortion groups, including Planned Parenthood, the National Abortion Federation, and the Guttmacher Institute. The number of EO 12866 meetings the Biden-Becerra HHS and OMB held on its final Title X rule? Zero.
The unprecedented politicization of OMB and HHS rulemaking processes violates long-standing agency norms and undercuts the democratic process. Given how extremely pro-abortion this and other rules out of the Biden-Becerra HHS have turned out to be, I would be shocked if HHS, OMB, or the White House had no calls or meetings with abortion special-interest groups before this rule was finalized. It is apparent that when Planned Parenthood says “Jump,” the Biden administration asks, “How high?” Or should I say, “How much?”
Rachel N. Morrison (rmorrison@eppc.org) is an attorney and policy analyst at the Ethics and Public Policy Center, where she works on EPPC’s HHS Accountability Project. She is a former attorney-adviser at the Equal Employment Opportunity Commission. A version of this article originally appeared in National Review on October 8, 2021. Reprinted with permission.
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See interview with Rachel Morrison on the Heartland Daily Podcast,
November 11, 2021