(National Review) [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 [on October 7]. 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 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 in 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 their edits and objections. The rule then goes back to HHS to consider those edits and suggestions. In case of irreconcilable differences, OMB acts as 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.