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Right to Life / Abortion 1991 [4] : Title X
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Right to Life / Abortion 1991 [4] : Title X
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Records of the White House Office of the Chief of Staff to the President (George H. W. Bush Administration)
John Sununu Issues Files
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Originally Processed With FOIA(s):
FOIA Number:
1998-0004-F[2]
S
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin:
Chief of Staff, White House Office of
Series:
Sununu, John, Files
Subseries:
Issues Files
OA/ID Number:
29170
Folder ID Number:
29170-004
Folder Title:
Right to Life / Abortion 1991 [4]: Title X
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15
25
4
1
JUL 09 '91 15:22 CONCERNED WOMEN FOR AMERICA
P.2/2
Concerned Women for America
370 L'ENFANT PROMENADE, S.W., SUITE 800 WASHINGTON D.C. 20024 (202) 488-7000
Beverly LaHaye
July 9, 1991
President
The Honorable John H. Sununu
THE CHIEF of STAFF
Chief of Staff to the President
has seen
The White House
Washington, D.C. 20500
Dear Governor Sununu:
I have heard disturbing reports that President Bush is
considering compromising on Title X regulations. Although I
believe the President will keep his promise to "veto any
legislation that weakens current law or existing regulations", I
am concerned about these growing rumors. I am requesting a
confirmation of President Bush's commitment to his promise.
I know the House vote on June 26 to allow Title X clinics to
continue abortion counseling and referrals has caused much
confusion. I was surprised to learn that a large pro-life
organization had actually called members of Concerned Women for
America to inform them a vote on The Health and Human Services
Appropriation Bill (H.R. 2707) was not a pro-life vote.
Unfortunately, I discovered this only a short time before the
vote and was not able to undo most of the damage caused by this
effort to deactivate the grassroots.
Although Concenred Women for America intially viewed a vote
on H.R. 2707 as a pro-life vote, most pro-life groups did not.
Many groups actually immobilized their members and members of
other organizations. This is the reason for the weak vote on the
H.R. 2707. Even the President of the Congressional Pro-Life
Caucus, Representative Alan Mollohan, who strongly opposes
changes to Title X regulations, voted for H.R. 2707. I am
hopeful that President Bush realizes the nature of the confusion
behind this vote.
I want to thank you for the strong pro-life stand the
Administration has always taken. I urge President Bush to
provide the necessary leadership and put an end to the rumors by
making a public statement that he will veto any weakening of the
Title X regulations.
With Best Regards
Benely Beverly LaHaye Labaya
President, Concerned Women for America
"Protecting the rights of the family through prayer and action"
THE WHITE HOUSE
WASHINGTON
June 24, 1991
MEMORANDUM FOR KATIE WINKELJOHN
FROM:
DANIEL CASSE Dac
SUBJECT:
Press Statement by James Mason
Attached is a faxed copy of the statement that HHS Assistant
Secretary of Health James Mason read this morning at his press
conference.
Please let me know if you need any further material.
Attachment
0%.
24.
91
03:40 PM
P 0 2
Statement of James O. Mason, M.D., M.P.H.
Assistant Secretary for Health
June 24,1991
As the head of the United States Public Health Service, I
appreciate this opportunity to underscore the importance of this
regulation separating Title X family planning services from
abortion related activities. This regulation, recently upheld by
the Supreme Court, stops the practice of using Federal funds to
promote and facilitate abortion as a family planning method.
This regulation makes good public health sense. It restores the
Title X family planning program to what it was originally
intended to be, a source of pre-pregnancy family planning
services. This regulation reflects the sound judgment that the
Federal Government should not subsidize abortion as a back-up
method of birth control. The Title X law enacted by Congress in
1970 specifically forbids the use of abortion as a means of
family planning, and this regulation gives force and specificity
to that prohibition.
Unfortunately, it is necessary to dispel misinformation about
this regulation. For example, this regulation does not, in any
way, deny women medical information. In fact, if a woman is
found to have any medical problem, the regulation requires that
she be assisted in receiving the complete and appropriate medical
care even if the result is termination of pregnancy. What is
often ignored in this debate is the fact that in all but a small
number of cases, the decision to have an abortion is not a
medical one, but an ethical one in which a physician or medical
24.
91
03:40 PM
P03
practitioner is no better equipped to answer than a lay person.
This regulation merely establishes a wall of separation between
family planning and abortion. It is time to allow the program to
focus on helping women avoid unplanned pregnancies and fighting
sexually transmitted diseases.
Also, let me underscore the importance of this program as a key
component in our Department's effort to reduce the national
problem of infant mortality. I believe that an important and
often overlooked aspect of this regulation is its requirement
that if'a client is pregnant she will be assisted to in obtain
access to vital pre-natal care. From the point that pregnancy is
confirmed, the public health role is to provide quality medical
care for two patients, the mother and her unborn child.
#######
II
Calendar No. 125
102D CONGRESS
1ST SESSION
S.323
[Report No. 102-86]
To require the Secretary of Health and Human Services to ensure that
pregnant women receiving assistance under title X of the Public Health
Service Act are provided with information and counseling regarding their
pregnancies, and for other purposes.
other purposes.
1ST SESSION
Reported without amendment
JUNE 20 (legislative day, JUNE 11), 1991
counseling regarding their pregnancies, and for
Service Act are provided with information and
assistance under title x of the Public Health
Services to ensure that pregnant women receiving
To require the Secretary of Health and Human
102D CONGRESS
IN THE SENATE OF THE UNITED STATES
[Report No. 102-86]
JANUARY 31 (legislative day, JANUARY 3), 1991
A BILL
S.323
Mr. CHAFEE (for himself, Mr. PACKWOOD, Mrs. KASSEBAUM, Mr. JEFFORDS,
Mr. COHEN, Mr. SIMPSON, Mr. ADAMS, Mr. AKAKA, Mr. WIRTH, Mr.
BINGAMAN, Mr. BRADLEY, Mr. BURDICK, Mr. CRANSTON, Mr. DODD,
Mr. GLENN, Mr. GORE, Mr. HARKIN, Mr. HOLLINGS, Mr. KENNEDY, Mr.
Calendar No. 125
KERRY, Mr. KOHL, Mr. LAUTENBERG, Mr. LEAHY, Mr. LEVIN, Mr.
METZENBAUM, Ms. MIKULSKI, Mr. MOYNIHAN, Mr. PELL, Mr. RIEGLE,
Mr. ROBB, Mr. SIMON, Mr. WELLSTONE, Mr. BENTSEN, Mr. SANFORD,
Mr. INOUYE, Mr. BIDEN, Mr. RUDMAN, Mr. BAUCUS, Mr. ROCKEFEL-
LER, Mr. SEYMOUR, Mr. HATFIELD, Mr. LIEBERMAN, Mr. FOWLER, Mr.
KERREY, Mr. SHELBY, Mr. DASCHLE, and Mr. SARBANES) introduced
the following bill; which was read twice and referred to the Committee
on Labor and Human Resources
JUNE 20 (legislative day, JUNE 11), 1991
Reported by Mr. KENNEDY, without amendment
A BILL
To require the Secretary of Health and Human Services
to ensure that pregnant women receiving assistance
under title X of the Public Health Service Act are pro-
2
vided with information and counseling regarding their
pregnancies, and for other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4
This Act may be cited as the "Title X Pregnancy
5 Counseling Act of 1991".
6 SEC. 2. PROVISION OF INFORMATION AND COUNSELING
7
REGARDING PREGNANCIES.
8
Notwithstanding any other provision of law, the Sec-
May
9 retary of Health and Human Services shall ensure that
10 projects receiving assistance under title X of the Public
11 Health Service Act offer pregnant women information and
12 counseling concerning all legal and medical options re-
13 garding their pregnancies. Women requesting such infor-
14 mation regarding the options for the management of an
15 unintended pregnancy shall be provided with nondirective
16 counseling, and referral on request, concerning alternative
17 courses of action that shall include-
18
(1) prenatal care and delivery;
19
(2) infant care, foster care, or adoption serv-
20
ices; and
21
(3) pregnancy termination.
S 323 RS
BAI91.449
S.L.C.
AMENDMENT NO.
Calendar No.
Purpose: To ensure that certain information and counseling
regarding pregnancies is available under programs re-
ceiving assistance under title X of the Public Health
Service Act and to clarify the circumstances under which
such counseling or referrals for such counseling must be
provided.
IN THE SENATE OF THE UNITED STATES-102d Cong., 1st Sess.
S.323
To require the Secretary of Health and Human Services to
ensure that pregnant women receiving assistance under
title X of the Public Health Service Act are provided
with information and counseling regarding their pregnan-
cies, and for other purposes.
Referred to the Committee on
and ordered to be printed
Ordered to lie on the table and to be printed
AMENDMENT intended to be proposed by Mr. CHAFEE
Viz:
1
Strike out section 2 of the bill and insert in lieu there-
2 of the following new section:
BA191.449
S.L.C.
2
1 SEC. 2. PROVISION OF INFORMATION AND COUNSELING REGARD-
2
ING PREGNANCIES.
3
Title X of the Public Health Service Act (42 U.S.C.
4 300 et seq.) is amended by adding at the end thereof the
5 following new section:
6 "SEC. 1010. PROVISION OF INFORMATION AND COUNSELING RE-
7
GARDING PREGNANCIES.
8
"(a) AVAILABILITY OF INFORMATION.-Notwithstand-
9 ing any other provision of law, the Secretary shall ensure
10 that projects make information or counseling services
11 available to pregnant women concerning all legal and med-
12 ical options regarding their pregnancies. Women request-
13 ing information or counseling under this section regarding
14 the options for the management of an unintended pregnan-
15 cy shall be provided with nondirective counseling, and re-
16 ferral on request, concerning alternative courses of action
17 that may include-
18
"(1) prenatal care and delivery; and
19
"(2) infant care, foster care, or adoption serv-
20
ices; and
21
"(3) pregnancy termination.
22
"(b) REQUIREMENT OF REFERRAL.-If a project does
23 not provide counseling or referral services on any of the
24 subjects described in paragraphs (1), (2) or (3) of subsec-
25 tion (a), such project shall advise the patient with respect
26 to whom such information is related of that fact and refer
BAI91.449
S.L.C.
3
1 such patient to another project receiving assistance under
2 this title that provides such counseling and referral.
3
"(c) RELIGIOUS BELIEFS OR MORAL CONVICTIONS.-
4
"(1) IN GENERAL.-No project, or individual
5
employed or associated with such project, may de-
6
cline to provide counseling or referral services on
7
any of the subjects described in paragraphs (1), (2)
8
or (3) of subsection (a), except where the provision
9
of such counseling or referral services would be con-
10
trary to the religious beliefs or moral convictions of
11
the project or individual.
12
"(2) FACILITIES AND PERSONNEL.-A project
13
that, as provided for in paragraph (1), declines to
14
provide counseling or referral services on any of the
15
subjects described in paragraphs (1), (2) or (3) of
16
subsection (a), may not be required to-
17
"(A) make its facilities available for the
18
provision of such counseling or referral serv-
19
ices; or
20
"(B) provide any personnel for the provi-
21
sion of such counseling or referral services.
22
"(d) PROHIBITION AGAINST DISCRIMINATION.-A
23 project receiving assistance under this title after the date of
24 enactment of this section shall not-
BA191.449
S.L.C.
4
1
"(1) discriminate in the employment, promo-
2
tion, or termination of employment of any physician
3
or other health care personnel; or
4
"(2) discriminate in the extension of staff or
5
other privileges to any physician or other health care
6
personnel;
7 because such physician has provided counseling concern-
8 ing the termination of a pregnancy or refused to provide
9 such'tounseling on the grounds that such counseling would
10 be contrary to the religious beliefs or moral convictions of
11 the physician, or because of the religious beliefs or moral
12 convictions of the physician with respect to such counsel-
13 ing.
14
"(e) NON-TERMINATION OF GRANT.-No project may
15 be denied funding, or be terminated, under this title based
16 on the decision of such project to provide or decline to
17 provide counseling and referral services on any of the sub-
18 jects described in paragraphs (1), (2) or (3) of subsection
19 (a). The burden of proof shall be on the entity or official
20 making the determination to deny funding or terminate the
21 project to demonstrate that such denial or termination is
22 not based solely on the decision by such project to provide
23 or decline to provide such counseling or referral services.
24
"(f) ACCESSIBILITY OF SERVICE.-A grantee under this
25 title shall ensure that information or counseling on each of
BA191.449
S.L.C.
5
1 the subjects described in paragraphs (1), (2) or (3) of sub-
2 section (a) is available at an adequate number of projects
3 assisted by such grantee under the grant within the geo-
4 graphic areas served.
5
"(g) DEFINITION.-For purposes of this section, the
6 term 'project' means an entity that provides family plan-
7 ning services with funds received under this title under a
8 negotiated, written agreement with a grantee.".
THE WASHINGTON POST FRIDAY, MAY 24, 1991
The Washington Post
AN INDEPENDENT NEWSPAPER
Forbidden Advice
I
IS NOW clear that there is no longer a
their own money to provide abortion services,
majority on the Supreme Court dedicated to
required that these services be separated both
protecting abortion rights against the on-
physically and financially from the family planning
slaughts of hostile legislators and retrogressive
operations. The regulations have not been en-
regulation-writers. Only a few years ago, the
forced during the time they have been challenged
court spelled out its conviction that government
in court, but now they will go into effect.
actions designed to inhibit the exercise of the
The four dissenters on the court, Justices
right-by requiring, for example, waiting periods
Marshall, Stevens, Blackmun and O'Connor,
and lectures on the perils of abortion-were
write that the regulations go far beyond the plain
unacceptable. There has been a gradual retreat
meaning of the statute. One dissenting appeals
in recent years, but yesterday the extent of the
court judge styled them "arbitrary and capri-
drift from that strong stand was apparent when
cious," which they certainly are. They are also an
the court approved federal regulations that bar
unconstitutional restriction on free speech and on
doctors and health workers even from mention-
a woman's ability to exercise her right to abor-
ing abortions in government-funded family plan-
tion. But the persuasive arguments of dissenters
ning clinics. Justice David Souter, whose first
are now history, and the task ahead is to plan an
vote on the issue was eagerly awaited, cast the
alternative challenge.
deciding vote.
President Bush, who did not propose the regu-
At issue were regulations promulgated in 1988
lations, could, of course, tell Secretary of Health and
that changed a practice at the 4,000 family
Human Services Louis Sullivan to revoke them. But
planning clinics funded, in part, under Title X of
he won't, and so the task falls to Congress. The
the Public Health Services Act. One section of
votes are there. Last year, the Senate voted 62 to
that law provides that "{n]one of the funds
36 to overturn the regulations, and House leaders
appropriated under this subchapter shall be used
believe that body could do the same. But veto-proof
in programs where abortion is a method of family
majorities are probably needed, and that measure of
planning." So from its inception the program
support will be much more difficult to organize.
never funded abortions. But staff routinely dis-
Yesterday's decision, allowing the government to
cussed abortion as an option and referred women
prohibit recipients of federal funds from even men-
to providers when appropriate. The Reagan ad-
tioning the option of abortion to poor women
ministration regulations banned this counseling
seeking advice, should cause a backlash sufficient to
and referral and, where Title X recipients used
mobilize Congress.
THE NEW YORK TIMES, May 24, 1991
Bad Abortion Advice, Court-Approved
The Supreme Court has now ruled that the
Justice David Souter, the newest member
Government has the power to pressure clinics to
on the Court and yesterday's swing vote, had it
hide information or even mislead poor pregnant
right during oral arguments last fall when he asked
women about their right to choose whether or not to
whether the H.H.S. regulations didn't interfere with
bear a child. That's bad enough as a moral and
a doctor's professional advice. Yet he joined Chief
constitutional matter, but the Court did more. It
Justice William Rehnquist's opinion that denied
held that Congress\ has actually authorized the
any such interference. Their captious reasoning:
Department of Health and Human Services to pro-
Since the patient has no reason to rely on the clinic
mote this coercive, unprofessional assault on a
for complete medical advice, she will not be mis-
woman's rights.
led. Nor is the doctor forced to say anything he
By a 5-to-4 vote the Court upheld regulations of
does not believe because he is only stating clinic
the Reagan and Bush Administrations claiming to
policy.
implement Congress's program subsidizing family
Is the Court countenancing a two-tier system of
planning clinics. Those rules forbid even the men-
health care, one for the rich, who use private
tion of abortion in such clinics. If a woman directly
doctors, and one for the poor, who rely on the
asks whether abortion is an option for her unintend-
clinics?
ed pregnancy, she must be told that "the project
The Chief Justice argues defensively, cynically
does not consider abortion an appropriate method
and contrary to experience, that poor women are no
of family planning," even if the doctors in fact
worse off under the H.H.S. rules than if Congress
believe it is an option.
had never supported any clinics at all. Tell that to
Surely Congress had no intention, when it
the patient who sees the clinic as her only source of
passed the 1970 Family Planning Act or any time
information or help.
since, of forcing doctors and clinics to give such
Congress now must respond with legislation SO
skewed advice. Even when it denied funding for
clear that the Supreme Court will honor its intention
poor women's abortions, Congress never contem-
to provide honest information with family planning
plated gagging doctors from giving full, honest
services for the poor. A simple bill negating the
answers to trusting women.
H.H.S. rules is the right place to start.
THE WASHINGTON POST, May 28, 1991
David Cole
Get Government Out of the Doctor's Office
The Supreme Court decided last Thurs-
Whatever view one takes on the constitu-
day that the government violates no consti-
health. llere more than anywhere else a
tionality of one-sided family planning coun-
tutional rights when it invites a poor, unedu-
strict regimen of full information must be
seling, there are strong ethical reasons for
maintained.
cated, pregnant woman into a publicly
forbidding it as a legislative matter. To allow
funded counseling program and provides her
Third, the fact that the government is
one-sided counseling is to violate the first
with one-sided information about her op-
funding the Title X program heightens con-
principle of medical counseling: the patient,
tions. Under the Title X regulations upheld
cerns about autonomy. The Bill of Rights
not the counselor, must be free to make the
by the court, government-funded family
reflects an understanding that the greatest
planning counselors cannot tell pregnant
final decision about his or her physical well-
threat to autonomy is posed by unlimited
women about the option of abortion but
being.
government. If the government is free to
must tell them about prenatal care, and
This principle dates back at least to Plato,
establish counseling programs for the citi-
cannot refer them to an abortion provider
who distinguished "the slave doctor;" who
zenry that subtly and not so subtly impose
but must refer them to a prenatal care
"prescribes what he thinks good, out of the
the current majority's political views on the
provider. If a woman knows énough to ask
abundance of his experience, as if he had no
country's neediest, we will be a long way
about abortion, the counselor is directed to
manner of doubt," from the free doctor, who
from the principles of autonomy and individ-
say that "abortion is not an appropriate
"enters into discourse with the patient, and
ual liberty upon which this country was
method of family planning," and to refer her
will not prescribe for him until he has first
founded.
for prenatal care.
convinced him." It is reflected to this day in
The dangers posed by the Title X regula-
For the moment, then, our nation has two
all current medical codes of ethics. Thus,
tions are probably apparent to those who
standards of medical counseling. Those who
the American College of Obstetricians &
can afford to pay for medical care will
favor protecting a woman's free choice
Gynecologists has dictated that when a phy-
receive nondirective counseling about all of
about her reproductive destiny. For those
sician counsels a pregnant woman, he must
their medical options and will thereby be
who oppose abortion, however, those dan-
discuss all options: "Counseling directed
free to make informed, autonomous deci-
gers can best be demonstrated by hypothe-
solely toward either promoting or prevent-
sions about their health. But the millions of
sizing the reverse situation. Imagine the
ing abortion does not sufficiently reflect the
BY RANCORN
poor women who are dependent on govern-
same soil of regulations drafted by a gov-
full nature of the problem or range of
ment-funded family planning counseling will
ernment that favored abortion over child-
options to which the patient is entitled."
assistance and advice of the professional but
receive one-sided information that steers
without the professional's intrusion on the
birth. Under such a regime, the Title X
them toward the administration's political
Moreover, this ethic of full disclosure and
nondirective counseling is not limited to
client's individual autonomy and free will.
program would mandate counseling and re-
choice about what they should do with their
medical counseling, but governs every con-
The concern about preserving autonomy
ferrals only about abortion. It would bar
bodies.
is especially great in the Title X context for
counseling about prenatal care and instruct
The Supreme Count's ruling, however, is
ceivable professional relationship. Similar
three reasons. First, Title X clients are for
counselors when asked about childbirth to
not the end of the matter. Congress can and
mandates can be found in the ethical codes
that govern the legal profession, accounting,
the most part young, indigent-most come
say that it is not "appropriate." This example
should put an end to the double standard
advertising, architecture, engineering, fi-
from families living below the poverty
makes clear that the only safe and honorable
that the Reagan administration created and
line-and uneducated. As a class, therefore,
course for government is to leave these
the court has now sanctioned. 11 nearly did
nancial planning, insurance and even real
they are particularly susceptible to being
decisions to the clients by mandating the
SO last year, when the Senate initially adopt-
estate. These guidelines recognize what the
misguided by one-sided, partial information.
provision of complete, neutral information
ed Sen. John Chafee's (R-R.1.) bill requiring
Supreme Court did not: that professional
Second, doctors are the paradigmatic ex-
Title X programs to provide a pregnant
on all of a pregnant woman's lawful options.
relationships are not equal and therefore
ample of a professional in whom we need to
woman with nondirective counseling and
require regulation to preserve the client's
trust. While we might be inclined to treat
The writer is a professor al Georgetown
referral On all her options: childbirth, adop-
autonomy. Nondirective counseling is de-
real estate salesmen al arm's length, we are
University Law Center and a volunteer
tion and abortion. The bill died on the floor,
signed to ensure that the client is able to
all at our most vulnerable when speaking to
but Chafee has reintroduced it this year.
allorney at the Center for Constitutional
make his or her own decision with the
a doctor or medical counselor about our own
Rights.
THE WALL STREET JOURNAL, Wednesday, June 26, 1991
TECHNOLOGY & MEDICINE
AMA Opposes Government Interference
With Doctors' Counseling of Patients
By THOMAS M. BURTON
That ruling was considered an impor-
Staff Reporter of THE WALL STREET JOURNAL
tant victory for the Bush administration.
CHICAGO-The American Medical As-
Abortion-rights groups maintained the de-
sociation. signaling its opposition to a ban
cision would make it more difficult to ob-
on abortion counseling at federally funded
tain abortions for poor women and for
clinics. voted to condemn all government
young women who lack information about
interference with doctors' ability to pro-
abortion and have no access to other medi-
vide counseling to patients.
cal counseling.
The unanimous vote by the AMA's 483-
The regulations are part of what is
member House of Delegates has the practi-
known as Title X of the federal Public
cal effect of spurring the association to-
Health Service Act. Recent estimates indi-
ward heightened lobbying efforts on Capi-
cate government money goes to some 3,900
tol Hill concerning abortion conseling. The
clinics serving nearly five million
U.S. House of Representatives is scheduled
women.
to vote today on a bill that would overturn
The AMA. taking pains to ensure that
the existing ban on such counseling.
its action isn't limited to the abortion de-
The AMA-approved resolution says the
bate. didn't even mention abortion in the
medical group will both lobby Congress on
measures passed at its convention here. In-
that bill and "vigorously" oppose any gov-
stead. the association denounced "any in-
ernment attempt to "interfere with the
terference by the government" causing a
physician-patient relationship."
doctor to "compromise his or her medical
Nancy Dickey, a member of the AMA's
judgment as to what information or treat-
governing board of trustees. contended
ment is in the best interest of the pa-
that existing federal regulations banning
tient."
abortion counseling could lead to other
Dr. Dickey and other AMA officials,
government interference with medicine
though. make it clear that they will lobby
that would be "much more pervasive than
Congress for the current abortion counsel-
just dealing with abortion.'
ing legislation. That bill will require the
For instance, said Dr. Dickey, AMA
two-thirds congressional majority neces-
members are concerned the government
sary to override the expected veto of Presi-
might enter other areas of medical treat-
dent Bush.
ment that have become political. One pos-
The AMA resolution speaks of the "dan-
sibility. she suggested. was interference
gers inherent" in laws or regulations that
with doctors' ability to inform patients
"restrict communication between physi-
about the existence of high-cost technology
cians and their patients."
that could treat their ailments.
"We have seen over the last decade
The Bush administration supports exist-
more willingness by the government to in-
ing federal rules-written by the Reagan
tercede in medical decisions," said Dr.
administration in 1988-that preclude doc-
Dickey. "But my patients expect that they
tors at federally funded facilities from ad-
will get the full information about the
vising poor women about the availability of
treatments available."
abortions.
Thus, the thrust of the AMA's vote, sup-
The U.S. Supreme Court upheld those
ported by doctors from 50 states, was to
regulations in a decision in May. The
condemn government prohibitions on any
court. through Chief Justice William Rehn-
treatment that becomes a political issue.
quist. concluded that the restrictive regula-
Dr. Dickey, as a further example,
tions are consistent with federal law and
cited concerns by doctors that the govern-
don't violate constitutional rights, such as
ment might seek to limit the medical
the right of free speech.
measures made available to prolong the
life of a dying, elderly patient.
THE NEW YORK TIMES, June 27, 1991
A.M.A. Condemns U.S. Curbs on Medical Advice
CHICAGO, June 25 (Reuters) -
Delegates to the annual convention of
Doctors react to a
association's leadership to "precisely
the American Medical Association con-
state" A.M.A. policy in public pro-
demned today any Federal interfer-
ence with doctors who provide advice
Federal ruling on
nouncements so as to "minimize public
misperception."
about abortion or any other medical
abortion
Vote Against Tobacco Ads
matter.
On a voice vote and without debate,
In other actions today, the delegates
the House of Delegates, the A.M.A.'s
counseling.
took these steps:
policymaking body, urged repeal of all
gReaffirmed the association's exist-
laws and regulations that "prevent
ing policy calling for a total ban on the
physicians from freely discussing with
promotion of all tobacco products. But
or providing information to patients
ernment or other third parties that
a proposal that had singled out outdoor
about medical care and procedures or
causes a physician to compromise his
tobacco billboard advertisements for
interfere with the physician-patient
or her medical judgment as to what in-
specific criticism was not considered.
relationship."
formation or treatment is in the best in-
terest of the patient."
Crdered the association to develop
The policy statement came partly in
The language was a compromise
model state legislation prohibiting any-
worked out by a committee that consid-
one from riding in the back of a pickup
response to a Federal rule, upheld last
truck without a seat belt.
month by the United States Supreme
ered several proposals specifically
gUrged President Bush to establish a
Court, that prohibits Government-fi-
commenting on the Supreme Court rul-
nanced family-planning clinics from
ing and on Government regulations in-
Cabinet-level entity, with the Depart-
ment of Health and Human Services as
telling women of their legal right to
volving abortion.
abortion.
Officially the medical association is
coordinator, to develop dietary guide-
lines for the country.
No Mention of 'Abortion'
neutral on the legal, moral and ethical
This statement was a compromise of
issues surrounding the abortion debate,
The resolution that passed today
a policy statement that had called for
as opposed to the medical issues sur-
does not mention the word "abortion."
stripping the Agriculture Department
rounding that debate. The delegates re-
But it says the association "strongly
of the dietary guideline work it now
iterated that neutrality today when, in
ondemns any interference by the Gov-
does, and transferring it to Health and
a separate resolution, they urged the
Human Services.
S.323 by CHAFEE (R-RI) -- Title X Pregnancy Counseling Act of 1991
Official Title (Caption) :
A bill to require the Secretary of Health and Human Services to ensure
that pregnant women receiving assistance under Title X of the Public Health
Service Act are provided with information and counseling regarding their
pregnancies, and for other purposes.
CURRENTLY: 39 Democrats
8 Republicans
47 Cosponsors
As of June 27
ADAMS (D-WA)
As Introduced 01/31/91
AKAKA (D-HI)
As Introduced 01/31/91
BAUCUS (D-MT)
Added 06/03/91
BENTSEN (D-TX)
Added 02/06/91
BIDEN (D-DE)
Added 05/24/91
BINGAMAN (D-NM)
As Introduced 01/31/91
BRADLEY (D-NJ)
As Introduced 01/31/91
BURDICK (D-ND)
As Introduced 01/31/91
COHEN (R-ME)
As Introduced 01/31/91
CRANSTON (D-CA)
As Introduced 01/31/91
DASCHLE (D-SD)
Added 06/12/91
DODD (D-CT)
As Introduced 01/31/91
FOWLER (D-GA)
Added 06/06/91
GLENN (D-OH)
As Introduced 01/31/91
GORE (D-TN)
As Introduced 01/31/91
HARKIN (D-IA)
As Introduced 01/31/91
HATFIELD (R-OR)
Added 06/04/91
HOLLINGS (D-SC)
As Introduced 01/31/91
INOUYE (D-HI)
Added 03/12/91
JEFFORDS (R-VT)
As Introduced 01/31/91
KASSEBAUM (R-KS)
As Introduced 01/31/91
KENNEDY, EDWARD (D-MA)
As Introduced 01/31/91
KERREY, BOB (D-NE)
Added 06/06/91
KERRY, JOHN (D-MA)
As Introduced 01/31/91
KOHL (D-WI)
As Introduced 01/31/91
LAUTENBERG (D-NJ)
As Introduced 01/31/91
LEAHY (D-VT)
As Introduced 01/31/91
LEVIN, CARL (D-MI)
As Introduced 01/31/91
LIEBERMAN (D-CT)
Added 06/05/91
METZENBAUM (D-OH)
As Introduced 01/31/91
MIKULSKI (D-MD)
As Introduced 01/31/91
MITCHELL, GEORGE (D-ME)
Added 06/21/91
MOYNIHAN (D-NY)
As Introduced 01/31/91
PACKWOOD (R-OR)
As Introduced 01/31/91
PELL (D-RI)
As Introduced 01/31/91
RIEGLE (D-MI)
As Introduced 01/31/91
ROBB (D-VA)
As Introduced 01/31/91
ROCKEFELLER (D-WV)
Added 06/03/91
RUDMAN (R-NH)
Added 06/03/91
SANFORD (D-NC)
Added 02/20/91
SARBANES (D-MD)
Added 06/17/91
SEYMOUR (R-CA)
Added 06/03/91
SHELBY (D-AL)
Added 06/06/91
SIMON (D-IL)
As Introduced 01/31/91
SIMPSON (R-WY)
As Introduced 01/31/91
WELLSTONE (D-MN)
As Introduced 01/31/91
WIRTH (D-CO)
As Introduced 01/31/91
S.L.C.
BA191.449
AMENDMENT NO.
Calendar No.
Purpose: To ensure that certain information and counseling
regarding pregnancies is available under programs re-
ceiving assistance under title X of the Public Health
Service Act and to clarify the circumstances under which
such counseling or referrals for such counseling must be
provided.
IN THE SENATE OF THE UNITED STATES-102d Cong., 1st Sess.
S.323
To require the Secretary of Health and Human Services to
ensure that pregnant women receiving assistance under
title X of the Public Health Service Act are provided
with information and counseling regarding their pregnan-
cies, and for other purposes.
Referred to the Committee on
and ordered to be printed
Ordered to lie on the table and to be printed
AMENDMENT intended to be proposed by Mr. CHAFEE
Viz:
1
Strike out section 2 of the bill and insert in lieu there-
2 of the following new section:
BAI91.449
S.L.C.
2
1 SEC. 2. PROVISION OF INFORMATION AND COUNSELING REGARD-
2
ING PREGNANCIES.
3
Title X of the Public Health Service Act (42 U.S.C.
4 300 et seq.) is amended by adding at the end thereof the
5 following new section:
6 "SEC. 1010. PROVISION OF INFORMATION AND COUNSELING RE-
7
GARDING PREGNANCIES.
8
"(a) AVAILABILITY OF INFORMATION.-Notwithstand-
9 ing any other provision of law, the Secretary shall ensure
10 that projects make information or counseling services
11 available to pregnant women concerning all legal and med-
12 ical options regarding their pregnancies. Women request-
13 ing information or counseling under this section regarding
14 the options for the management of an unintended pregnan-
15 cy shall be provided with nondirective counseling, and re-
16 ferral on request, concerning alternative courses of action
17 that may include-
18
"(1) prenatal care and delivery; and
19
"(2) infant care, foster care, or adoption serv-
20
ices; and
21
"(3) pregnancy termination.
22
"(b) REQUIREMENT OF REFERRAL.-If a project does
23 not provide counseling or referral services on any of the
24 subjects described in paragraphs (1), (2) or (3) of subsec-
25 tion (a), such project shall advise the patient with respect
26 to whom such information is related of that fact and refer
BA191.449
S.L.C.
3
1 such patient to another project receiving assistance under
2 this title that provides such counseling and referral.
3
"(c) RELIGIOUS BELIEFS OR MORAL CONVICTIONS.-
4
"(1) IN GENERAL.-No project, or individual
5
employed or associated with such project, may de-
6
cline to provide counseling or referral services on
7
any of the subjects described in paragraphs (1), (2)
8
or (3) of subsection (a), except where the provision
9
of such counseling or referral services would be con-
10
trary to the religious beliefs or moral convictions of
11
the project or individual.
12
"(2) FACILITIES AND PERSONNEL.-A project
13
that, as provided for in paragraph (1), declines to
14
provide counseling or referral services on any of the
15
subjects described in paragraphs (1), (2) or (3) of
16
subsection (a), may not be required to-
17
"(A) make its facilities available for the
18
provision of such counseling or referral serv-
19
ices; or
20
"(B) provide any personnel for the provi-
21
sion of such counseling or referral services.
22
"(d) PROHIBITION AGAINST DISCRIMINATION.-A
23 project receiving assistance under this title after the date of
24 enactment of this section shall not-
BA191.449
S.L.C.
4
1
"(1) discriminate in the employment, promo-
2
tion, or termination of employment of any physician
3
or other health care personnel; or
4
"(2) discriminate in the extension of staff or
5
other privileges to any physician or other health care
6
personnel;
7 because such physician has provided counseling concern-
8 ing the termination of a pregnancy or refused to provide
9 such'tounseling on the grounds that such counseling would
10 be contrary to the religious beliefs or moral convictions of
11 the physician, or because of the religious beliefs or moral
12 convictions of the physician with respect to such counsel-
13 ing.
14
"(e) NON-TERMINATION OF GRANT.-No project may
15 be denied funding, or be terminated, under this title based
16 on the decision of such project to provide or decline to
17 provide counseling and referral services on any of the sub-
18 jects described in paragraphs (1), (2) or (3) of subsection
19 (a). The burden of proof shall be on the entity or official
20 making the determination to deny funding or terminate the
21 project to demonstrate that such denial or termination is
22 not based solely on the decision by such project to provide
23 or decline to provide such counseling or referral services.
24
"(f) ACCESSIBILITY OF SERVICE.-A grantee under this
25 title shall ensure that information or counseling on each of
BA191.449
S.L.C.
5
1 the subjects described in paragraphs (1), (2) or (3) of sub-
2 section (a) is available at an adequate number of projects
3 assisted by such grantee under the grant within the geo-
4 graphic areas served.
5
"(g) DEFINITION.-For purposes of this section, the
6 term 'project' means an entity that provides family plan-
7 ning services with funds received under this title under a
8 negotiated, written agreement with a grantee."
VOTE IN SENATE LABOR AND HUMAN RESOURCES COMMITTEE ON S. 323
YES
NO
Kennedy
Hatch
Pell
Coats
Metzenbaum
Thurmond
Dodd
Durenberger
Simon
Cochran
Harkin
Adams
Mikulski
Bingaman
Wellstone
Kassebaum
Jeffords
TOTAL: 12
TOTAL: 5
VOTE ON CHAFEE PREGNANCY COUNSELING AMENDMENT TO TITLE X
September 25, 1990
YEAS (62)
NAYS (36)
Republicans
Democrats
Republicans
Democrats
Bond
Adams
Kerrey
Armstrong
Boren
Chafee
Akaka
Kerry
Boschwitz
Breaux
Cohen
Baucus
Kohl
Burns
Conrad
Gorton
Bentsen
Lautenberg
Coats
DeConcini
Hatfield
Biden
Leahy
Cochran
Exon
Heinz
Bingaman
Levin
D'Amato
Ford
Jeffords
Bradley
Lieberman
Danforth
Heflin
Kassebaum
Bryan
Metzenbaum
Dole
Johnston
Murkowski
Bumpers
Mikulski
Domenici
Reid
Packwood
Burdick
Mitchell
Durenberger
Roth
Byrd
Moynihan
Garn
Simpson
Cranston
Nunn
Gramm
Specter
Daschle
Pell
Grassley
Stevens
Dixon
Pryor
Hatch
Thurmond
Dodd
Riegle
Helms
Warner
Fowler
Robb
Humphrey
Glenn
Rockefeller
Kasten
Gore
Sanford
Lott
Graham
Sarbanes
Mack
Harkin
Sasser
McCain
Hollings
Shelby
McClure
Inouye
Simon
McConnell
Kennedy
Wirth
Nickles
Pressler
Symms
Wallop
NOT VOTING: Rudman, Wilson
1981 Guidelines, Department of Health and Human Services
PART II
relevant educational materials; initial counsel-
7.0 Client Services
ing; explanation of all procedures and signing
Projects funded under Title x must provide medical,
of an informed consent covering examination
social, and referral services relating to family plan-
and treatment; obtaining of a personal and
ning to all eligible clients who desire such services
family history; performance of a physical ex-
[59.5(b)1, 2. 8]. Part II of this document has been
amination; performance of routine and other
developed to provide guidance to grantees as to
laboratory tests; individual counseling; per-
those services which are required, recommended,
formance of any necessary medical proce-
or related to fulfill the mission and intent of Title X.
dures; provision of medications and/or sup-
The required services are those services which are
plies; exit counseling. Return visits should
stipulated either in the law or the regulations, or
include an assessment of the client's health
which are otherwise considered essential to the
status and an opportunity to change methods.
provision of family planning services of high quality.
For clients electing nonprescription meth-
The recommended services are those services in-
ods of contraception or fertility awareness
tended to promote the reproductive and general
methods including natural family planning,
health care of the family planning client population.
the initial required medical work-up may be
The related services are those services which are not
deferred at their request, with appropriate
authorized under Title X but which may be provided
documentation in the medical record. Such
by projects in order to meet the specific reproduc-
clients should be encouraged to have health
tion-related health needs of the family planning
screening at return visits.
client.
7.3
EMERGENCIES
7.1 SERVICE PLANS AND PROTOCOLS
Emergency situations involving clients and/or
The service plan is the component of the
staff may occur at any time. All projects should
grantee's health care plan which is developed
therefore have written plans and procedures
by the medical director and clinical staff
for the management of on-site medical emer-
and which identifies those services to be
gencies (e.g., cardiac arrest, shock, hemor-
provided to clients under Title X by the
rhage, and respiratory difficulties) with which
project. As part of the service plan, all del-
project staff are familiar. Written plans and
egates and/or service sites must have written
procedures should also be available for emer-
protocols, approved by the grantee, which
gencies requiring ambulance services and/or
detail specific procedures for the provision of
hospital treatment. Information and instruc-
each service offered. Plans must be written
tions on dealing with fire, natural disaster,
in accordance with Title X program guidelines
robbery, power failure, harrassment, and
and current medical practice and must cover
other emergency situations should also be
the services provided at initial visits, annual
available, and appropriate training in these
revisits, and other revisits, including supply
areas should be provided to staff.
and problem revisits (see chart 7.1).
Under exceptional circumstances, a waiver
7.4 REFERRALS AND FOLLOW-UP
from a particular requirement in the guide-
Grantees must provide all family planning
lines may be obtained from the Regional
services listed under "Required Services"
Office upon written request from an individ-
either on-site or by referral. When required
ual project. For example, the hemoglobin or
services are to be provided by referral, the
hemotocrit requirement may be waived if a
grantee must establish formal arrangements
project's medical director determines that
with a referral agency for the provision of ser-
routine anemia screening is unwarranted in
vices and reimbursement of costs, as appro-
the client population served. In submitting a
priate. Title x funds may be used to cover the
request for such an exception, the project
cost of these referred services only if no other
must provide epidemiologic, clinical, and
sources of funds are available.
other supportive data to justify the request
For other than required services, that is
and the duration of the waiver.
services which are determined to be necessary
but which are beyond the scope of the pro-
7.2 PROCEDURAL OUTLINE
gram, clients should be referred to other pro-
The services provided to family planning cli-
viders for care. Examples of such referrals are:
ents, and the sequence in which they are pro-
treatment for gynecologic dysplasia or malig.
vided, will depend upon the type of visit and
nancy, pregnancy management, family or gen.
the nature of the service requested. However,
eral medical practice, general surgery, genetic
the following components should be offered
testing, dentistry, mental health services, mar
to all clients at the initial visit: Presentation of
riage/sexual counseling, services related tc
7
abortion, and other social services. Grantees
to assure that the services are obtained. How-
should maintain a list of health care providers,
ever, follow-up of family planning clients
local health and welfare departments, hos-
must be sensitive to the client's concerns for
pitals, voluntary agencies, and health services
confidentiality and privacy. Therefore, mech-
projects supported by other Federal programs
anisms for follow-up must be negotiated with
[59.5(b)2] to use for referral purposes. Proj-
the client on the first visit, and the negotiated
ects must select referral providers according
method of follow-up should be noted on the
to procedures which assure fairness in the re-
follow-up card and the client's medical record.
ferral practice and which identify providers of
acceptable quality. Whenever possible, clients
8.0 Required Services
should be given a choice of providers from
which to select.
The services contained in this section must be pro-
Projects should have written referral and
vided by all projects funded under Title X.
follow-up procedures. The timing and manner
of referral and follow-up depend upon the
8.1
CLIENT EDUCATION
nature of the problem for which the referral
Education services should provide clients with
was made. For example:
the information they need to make in-
Emergency referrals (e.g., possible ectopic
formed decisions about family planning, to
pregnancy) should be made immediately
use specific methods of contraception, and
with the provider.
to understand the procedures involved in the
family planning clinic visit. On an initial visit
Urgent referrals (e.g.; solitary breast nod-
clients should be offered information about
ule) should be followed up within two
basic female and male reproductive anatomy
weeks with the client.
and physiology and the value of fertility reg-
ulation in maintaining individual and family
Essential referrals (e.g., hypertension)
health. The range of available services and the
should be followed up with the client,
purpose and sequence of clinic procedures
the timing to depend on professional
should also be explained. Clients must be
judgment.
given information about all contraceptive
methods in order to make an informed choice.
Discretionary referrals (made at the re-
This instruction should be documented in the
quest of the client) should be followed
client record. Additional education, partic-
up with the client at the next clinic visit.
ularly at subsequent visits, should include in-
Further follow-up may not be necessary
formation on reproductive health and health
but should be based on professional
promotion/disease prevention, as appropriate.
judgment.
The project's education component should
include written goals, content. outlines and
Projects should make arrangements for the
transfer (with client consent) of pertinent cli-
procedures, and an evaluation strategy. The
educational approach used should be appro-
ent information to the referral provider. In
addition, internal systems should be devel-
priate to the patient's age, situation, and pre-
oped to document (1) that recommended re-
viously acquired information on the various
methods. Providers of education should have
ferral appointments are made within an ap-
a mechanism to determine that information
propriate period of time, (2) that these
appointments are kept, (3) that providers re-
given has been understood.
turn complete pertinent client information to
Informed Consent
the referring center, (4) action taken in re-
For ethical, medical, and legal reasons, an
sponse to recommendations received from
informed consent documenting the client's
the referral provider, and (5) any comments
voluntary consent to receive the project's
the client makes about the referral provider.
services must be signed by the client prior
Efforts may be made to aid the client in iden-
to his or her receiving any medical services.
tifying potential resources for reimbursement
The form should be written in the primary
of the referral provider, but projects are not
language of the client or witnessed by an
responsible for the cost of this care.
interpreter. It should cover all procedures
When family planning services are provided
and medications to be provided. To give
by the project to clients referred from other
informed consent for contraception, the
agencies, the project has a responsibility to
client must receive education on the bene-
share client information with the referring
fits and risks of the various contraceptive
agency. Such information may only be given
alternatives and details on the safety, effec-
with the written permission of the client.
tiveness, potential side effects, complica-
When family planning clients are referred
tions, and danger signs of the contraceptive
for services, projects have a responsibility to
method(s) of choice. Forms for each con-
assure that clients obtain the appropriate ser-
traceptive method, including sterilization,
vices, and referred clients should be contacted
should be part of the project's service plan.
9
All forms should contain a statement that
8.3
HISTORY, PHYSICAL ASSESSMENT, AND
the client has been counseled, has read the
LABORATORY TESTING
appropriate informational material, and has
understood the content of both. The signed
History
informed consent should be part of the
A comprehensive personal history and per-
client's record. It should be renewed and
tinent history of immediate family members
updated when there is a major change in
must be obtained on all female clients. This
the client's health status or a change to a
should be done at the initial medical visit.
different prescriptive contraceptive method.
The history should be updated at subse-
When sterilization services are provided
quent visits. Histories are recommended for
or arranged for with Government funding,
all male clients and are required for those
Federal sterilization consent guidelines must
requesting medical services. The initial his-
be followed (see Attachment C).
tory should address the following areas:
-Allergies; immunizations, especially ru-
8.2
COUNSELING
bella; current use of prescription and
over-the-counter medications; significant
The primary purpose of counseling in the
illnesses; hospitalizations; surgery; re-
family planning setting is to assist clients in
view of systems; extent of_use of tobacco,
reaching an informed decision regarding the
alcohol, and drugs.
choice and continued use of family planning
Histories of reproductive function in fe-
methods and services. The counseling process
male patients should include:
is designed to help clients resolve uncertainty,
-Menstrual history; sexual activity; sex-
ambivalence, and anxiety in relation to repro-
ually transmitted diseases; contraceptive
ductive health and to enhance their capacity
use; pregnancies; in utero exposure to
to arrive at a decision that reflects their con-
DES.
sidered self-interest.
On medical revisits, oral contraceptive
The counseling process involves mutual
users must be asked about symptoms of
sharing of information. Persons who provide
embolic disease and other major compli-
counseling should be knowledgeable, objec-
cations and side effects. IUD users must be
tive, non-judgmental, sensitive to the rights
asked, in particular, about symptoms of
and differences of clients as individuals, and
pelvic infection.
able to create an environment in which the
The male reproductive history should in-
client feels comfortable discussing personal
clude:
information. The counselor's knowledge
-Sexual activity; sexually transmitted
should be sufficient to provide ample infor-
diseases; fertility; in utero exposure to
mation regarding the risks, benefits, contra-
DES.
indications, and effective use of any method,
procedure, treatment, or option being con-
Physical Assessment
sidered by the client. Documentation of coun-
Female clients requesting prescriptive meth-
seling must be included in the client's record.
ods of contraception (e.g., oral contracep-
Method Counseling
tives, IUDs, diaphragms) must have a gen-
Post-examination counseling should be pro-
eral physical examination at the initial
vided to assure that the client knows results
medical visit. The initial examination should
of the history, physical examination, and
include at least the following:
laboratory studies that may have a bearing
-Height; weight; blood pressure; thy-
on the choice of method(s); knows how to
roid; heart; lungs; extremities; breasts,
use and is comfortable with the contracep-
including instruction in self-exam; abdo-
tive method selected and prescribed; knows
men; pelvic examination, including visu-
the common side effects and possible com-
alization of the cervix and bimanual
plications of the method selected and what
exam; rectal exam, as indicated.
to do in case they occur; knows the planned
For oral contraceptive users, initial and
return schedule and has a next appointment
annual physical examinations must include
at an appropriate interval; knows an emer-
evaluation of weight, blood pressure, ex-
gency 24-hour telephone number and a
tremities, breasts, and pelvic organs. For
location where emergency services can be
IUD users, initial and annual physical exam,
obtained; and receives appropriate referral
blood pressure, and pelvic exam are, re-
for additional services as needed.
quired, and a more complete exam is rec-
ommended.
Special Counseling
Female clients using nonprescriptive
Clients should receive special counseling
methods or diaphragms should have a gen-
regarding future planned pregnancies, man-
eral physical examination at least every two
agement of a current pregnancy, steriliza-
years. This exam is particularly important
iton, and other individual problems (e.g.,
for clients who are not receiving gene
genetic, nutritional, sexual) as indicated.
health care elsewhere.
10
Male clients requesting temporary meth-
are
potentially
ods of contraception are not required to
traceptive use
undergo physical examination, but should
-Hemagglutination test for rubella
be offered this service, to include:
Other procedures and lab tests may be
-Height; weight; blood pressure; thy-
indicated for some clients and may be pro-
roid; heart; lungs; abdomen; examina-
vided on-site or by referral.
tion of the genitals and rectum, including
Revisits
palpation of the prostate and instruction
Revisit schedules should be individualized,
in self-exam of the testes.
based upon the client's need for education,
Laboratory Testing
counseling, and medical care beyond that
The following laboratory procedures should
provided at the initial visit. Younger clients
be done on-site for all female clients at the
and clients initiating a new contraceptive
initial visit and must be done for those re-
method may need special opportunities for
ceiving prescription methods. They may be
reassurance and clarification. On the other
waived if written results of these tests done
hand, projects should avoid antagonizing
within six months at another facility are
well-informed clients who are comfortable
with the method being used; such clients
available.
-Hemoglobin (Hgb) or hematocrit (Hct)
should not be required to return for un-
wanted counseling or frequent supply visits.
-Pap smear
-Gonorrhea culture for clients requesting
Clients selecting oral contraceptives,
IUD insertion
IUDs, or diaphragms should be scheduled
In addition, pregnancy testing and gonor-
for a revisit within three months after initi-
rhèa screening must be available and pro-
ation of the method to reinforce its proper
vided upon request.
use, to check for possible side effects, and
Initial laboratory procedures should be
to provide additional information as
repeated annually or as indicated. Oral con-
needed. A new client who chooses to con-
traceptive users must have annual pap
tinue a method in use upon entry to the
smears, and IUD users must have annual
program need not return for this early re-
hemoglobins or hematocrits and pap smears.
visit unless a need for reevaluation is deter-
Gram stains and cultures for gonorrhea,
mined on the basis of the findings at the
and other laboratory tests as indicated,
initial visit.
should be available for male clients.
Annual revisits are mandatory for clients
Every effort should be made to assure
using oral contraceptives or intrauterine de-
that laboratory tests performed by or for
vices and must include at a minimum the
the clinic are of high quality. This means
components of the history, physical exam-
that the grantee should assess the creden-
ination, and laboratory procedures as spec-
tials of laboratories with which it contracts.
ified for such clients. Annual history up-
If laboratory testing is performed on-site,
dates, exams, and laboratory tests are
written protocols for quality control and
recommended for all clients. The frequency
proficiency testing are necessary.
with which specific procedures are to be
routinely repeated should be determined
Notification of Abnormal Lab Results
by the medical director and documented in
A procedure must be established to allow
the health care plan.
for client notification and adequate follow-
up of significantly abnormal laboratory re-
sults. This procedure must respect the cli-
ent's request to maintain confidentiality.
8.4
FERTILITY REGULATION
When initial contact is not successful, a rea-
sonable further effort should be made, con-
Projects must make available, either directly
sistent with the severity of the abnormality.
or through referral, all of the DHHS approved
methods of contraception. For recommenda-
Other Laboratory Services or Procedures
tions on the management of each method,
The following procedures and lab tests
see Related Documents-Fertility Regulation.
should be provided by the project when
medically indicated:
Temporary Contraception
-Screening for non-gonococcal sexually
Currently, the temporary methods of con-
transmitted diseases, e.g., syphilis
traception include barrier methods (female
-Microscopic examination of vaginal
and male), IUDs, fertility awareness meth-
smears and wet mounts for diagnosis of
ods including natural family planning, and
vaginitis
hormonal contraceptives. More than one
-Microscopic examination and/or culture
method of contraception can be used si-
and sensitivity of urine
multaneously by a client and should be
-Selected laboratory tests, e.g., blood
offered if the client requests it, e.g., the
sugar or cholesterol test for women who
use of two barrier methods, the use of a
11
barrier method with an IUD, or the com-
bination of a barrier method with tech-
education, examination, appropriate labora-
niques of ovulation detection. Current FDA
tory testing (hemoglobin or hematocrit, pap
guidelines as to relative and absolute con-
smear, and culture for gonorrhea), counsel-
ing, and appropriate referral.
traindications, e.g., package inserts, should
be followed.
Level II Includes semen analysis, assess
Permanent Contraception
ment of ovulatory function through basal
body temperature and/or endometrial bi-
Projects must ascertain that the counseling
and consent process assures voluntarism
opsy, and postcoital testing.
and full knowledge of the permanence,
Level III More sophisticated and complex
risks, and benefits associated with female
than Level I and Level II services.
and male sterilization procedures. Federal
regulations must be met if the sterilization
Grantees must provide Level I infertility
procedure is performed or arranged for by
services as a minimum. Those with infertility
the project (see Attachment C). For further
programs supervised by physicians with spe-
guidance, see also Appendices-Permanent
cial training in infertility can offer Level II
Contraception.
services. However, when considering the
scope of the infertility services to be offered
Emergency Contraception
to clients, grantees must be aware that such
Projects must comply with FDA recommen-
services are expensive, not necessarily suc-
dations for the administration of drugs or
cessful, and may be high risk from medical
devices for postcoital contraception.
and legal points of view. It is therefore im-
The use of diethylstilbestrol (DES) within
portant that the proportion of the grantee's
72 hours of unprotected sexual intercourse
budget which is to be used for infertility ser-
around the time of presumed ovulation has
vices be determined very carefully.
been found to be highly effective in pre-
The grantee's health care plan must have
venting pregnancy. However, this drug has
an infertility service component that identifies
been implicated in the development of
those services to be provided by each del-
reproductive abnormalities and fertility-
egate at individual service sites or by referral.
related risks in the offspring of women who
The infertility plan must address how services
took DES during pregnancy. Although the
will be provided, including the criteria for
doses and duration of DES use for postcoital
diagnosis of infertility, the scope of services,
contraception are less than those commonly
identification of referral sites, follow-up, fee
used when DES was prescribed for preg-
schedules, and payment mechanisms. Wher
nancy complications, health risks may be
referring for Level II or Level III infertilit
similar. It also is possible that women may
services, efforts should be made to help the
take the drug as a postcoital contraceptive
client identify sources of funding for these
when already pregnant from a previous in-
services.
tercourse. In such cases, the potential off-
Since infertility may be due to male factors,
spring of such pregnancies would be ex-
female factors, or a combination of the two,
posed to the risks previously described. in
both partners need to be involved in the
light of these considerations, the following
infertility evaluation. Adequate education
recommendations are made:
should be provided so that clients understand
-Postcoital contraception with DES in any
human reproduction and sexuality as it relates
woman should be restricted to situa-
to their particular problem. The benefits and
tions where no alternative is judged ac-
risks of proposed diagnostic and therapeutic
ceptable by a fully informed patient and
measures to be provided on-site must be
her physician.
clearly explained and informed consent ob-
tained.
-Thorough birth control counseling should
For further guidance, see Appendices-In-
accompany or follow any prescription of
fertility Services.
DES for postcoital purposes. A principal
objective of such counseling should be
to discourage women from considering it
8.6
PREGNANCY DIAGNOSIS AND COUNSELING
as a routine method of contraception.
Grantees must provide pregnancy diagnosis
and counseling to all clients in need of this
8.5
INFERTILITY SERVICES
service. Pregnancy testing is one of the most
Grantees are required by law to make basic
frequent reasons for an initial visit to the
infertility services available to clients desiring
family planning facility, particularly by adoles-
such services. Infertility services which may
cents. It is therefore important to use this
be supported by Federal funds are categorized
occasion as an entry point for providing
as follows:
education and counseling about family pl.
ning.
-Level I Includes initial infertility interview,
Pregnancy cannot be accurately diagnos
12
and staged through laboratory testing alone.
up will assure the privacy of the individual.
Pregnancy diagnosis consists of a history,
However, counselors should encourage young
pregnancy test, and physical assessment, in-
clients to discuss their needs with parents or
cluding pelvic examination. Projects providing
other family members.
pregnancy testing on-site should have avail-
Adolescents seeking contraceptive services
able at least one test of high specificity and
should be informed about all methods of con-
one of high sensitivity. If the medical exam-
traception. As their needs frequently change,
ination cannot be performed in conjunction
counseling should prepare them to use a
with laboratory testing, the client must be
variety of methods effectively. In addition,
counseled as to the importance of receiving
teenagers and their partners should be en-
a physical assessment as soon as possible,
couraged to participate fully in project medi-
preferably within 15 days. This can be done
cal services, including physical examination
on-site, by a provider selected by the client,
and laboratory studies. However, as some
or by a provider to which the client has been
teenagers may fear the medical procedures
referred by the project. For those clients with
usually performed at the first clinic visit,
positive pregnancy test results who elect to
projects may defer them for those teenagers
continue the pregnancy, the examination may
who request deferral and elect nonprescrip-
be deferred, but should be performed within
tion methods.
30 days. For clients with a negative pregnancy
Because there is a high incidence of sexually
diagnosis; the cause of delayed menses should
transmitted diseases (STD) among teenagers, it
be investigated. If ectopic pregnancy is "sus-
is appropriate to ask them about symptoms or
pected, the client must be referred for imme-
possible exposure to these infections. Teens at
diate diagnosis and therapy.
particularly high risk of STD should be urged
Pregnant women should be offered infor-
to undergo examination and treatment as in-
mation and counseling regarding their preg-
dicated, either directly or by referral.
nancies. Those requesting information on op-
For further recommendations, see Appen-
tions for the management of an unintended
dices-Adolescent Services.
pregnancy are to be given non-directive coun-
seling on the following alternative courses of
action, and referral upon request:
8.8
SEXUALLY TRANSMITTED DISEASES (STD)
Prenatal care and delivery
Projects must provide an initial gonorrhea cul-
ture for women requesting IUD insertion.
Infant care, foster care, or adoption
Gonorrhea cultures should also be provided
Pregnancy termination
for clients with probable or definite exposure
to gonorrhea and those with symptoms and
Clients planning to carry their pregnancies
signs suggesting gonococcal infection. Projects
to term should be given information about
must comply with State and local STD report-
good health practices during early pregnancy,
ing requirements.
especially those which serve to protect the
Treatment of a client and partner(s) for gon-
fetus during the first three months (e.g., good
orrhea should be provided through the pro-
nutrition, avoidance of smoking, drugs, and
ject. When treatment is provided on-site, ap-
exposure to x-rays) and referral for prenatal
propriate follow-up measures must be under-
care.
taken to ensure cure of all persons treated. If
Clients who are found not to be pregnant
parenteral antibiotics are administered, per-
should be given information about the avail-
sonnel capable of handling an anaphylactic re-
ability of contraceptive and infertility services.
action must be in attendance, and appropriate
For further information, contact the National
resuscitation drugs and equipment must be
Clearinghouse for Family Planning Informa-
available.
tion, as listed in Attachment D.
For further information, see Appendices—
Sexually Transmitted Diseases.
8.7
ADOLESCENT SERVICES
Adolescent clients require skilled counseling
8.9 IDENTIFICATION OF ESTROGEN-EXPOSED
and detailed information. Appointments
OFFSPRING
should be available to them for counseling
and medical services on short notice.
The daughters and sons of women who re-
It is important not to assume that adoles-
ceived DES or similar hormones during preg-
cents are sexually active simply because they
nancy may have abnormalities of their repro-
have come for family planning services. Many
ductive systems or other fertility-related risks.
teenagers are seeking assistance in reaching
As part of the history, clients born between
this decision. Abstinence is a valid and re-
1940 and 1970 should be asked to find out
sponsible option and should be discussed.
whether or not their mothers took estrogens
Adolescents must be assured that the sessions
during pregnancy. Clients prenatally exposed
are confidential and that any necessary follow-
to estrogens should receive special screening
13
either on-site or by referral. Female clients
them to provide simple genetic screening.
should be made aware that they are at risk for
Training may be appropriately provided by a
developing a rare cervico-vaginal tumor and
genetic service program to which the project
for a number of complications of pregnancy.
is linked. The purpose of training is to famil-
Male clients should be made aware that they
iarize staff with the indications for genetic ser-
are at risk of certain lesions of the genital tract
vices, referral mechanisms, and resources. Lit-
and for decreased fertility.
erature and informational materials regarding
For further recommendations, see Appendi-
the availability of genetic services, including
ces-Estrogen-Exposed Offspring.
but not limited to prenatal diagnosis, should
be available in the appropriate language to all
9.0 Recommended Services
clients on request.
Since the services contained in this section are im-
When genetic screening services are offered
portant to reproductive health care, it is recom-
by a project, they must (1) be supported by
mended that they be provided at individual service
a program of public information and educa-
tion which is sensitive to the concerns of local
sites.
ethnic and religious groups and upholds the
9.1 GONORRHEA SCREENING
dignity of individuals with congenital physical
or mental limitations, (2) include education
In community or client populations with a
and counseling to all clients on a voluntary
high incidence of gonorrhea, endocervical
basis, and (3) include referral for testing or
cultures for gonorrhea should be performed
further screening if indicated.
on each female client at the time of the initial
For additional guidance, see Appendices—
pelvic examination and repeated as indicated.
Genetic Screening.
A yield of equal to or greater than 4 percent
positive cultures merits universal screening.
9.4 HEALTH PROMOTION/DISEASE PREVENTION
For additional guidance, see Appendices—
Sexually Transmitted Diseases.
For many clients, family planning programs are
their only continuing source of health infor-
9.2
MINOR GYNECOLOGIC PROBLEMS
mation and medical care. Therefore, while
most of the client services will necessarily re-
Family planning programs should provide for
late to fertility regulation, family planning pro-
the diagnosis and treatment of minor gyne-
grams should, whenever possible, provide
cologic problems so as to avoid fragmentation
health maintenance services such as screen-
or lack of medical care for clients with these
ing, immunization, and general health educa-
conditions. Problems such as vaginitis or uri-
tion and counseling directed toward health
nary tract infection may be amenable to on-
promotion and disease prevention. These ad-
the-spot diagnosis and treatment, following
ditional services should promote the clients'
microscopic examination of vaginal secretions
general state of health and, in turn, the health
or urine.
of their infants and children. Programs are
therefore encouraged to assess the health
9.3 GENETIC SCREENING AND REFERRAL
problems prevalent among the populations
they serve and to develop services to address
For clients at risk for transmission of genetic
them.
abnormalties, some basic effort to define this
Nutrition services are an example of an im-
risk is a logical component of family planning
portant activity directed toward promoting
services. Initial genetic screening and referral
services should be offered to clients who are
health and preventing disease which can be
in need of such services.
integrated into the existing family planning
services. Projects should provide nutritional
Initial screening consists of a careful family
problem identification, basic nutrition infor-
history of the client and the client's partner.
mation, screening, and medical care to clients
More complete genetic screening and coun-
at high risk of nutrition problems or those re-
seling may be offered directly (by a genetic
counselor who functions in association with a
quiring nutritional management of disease.
These services can be provided without the
clinical genetics team capable of providing
resources of a full-time nutritionist. Project
comprehensive services for a broad range of
staff can deliver such services with nutrition
genetic disorders) or indirectly (through refer-
ral to a comprehensive genetic service program
training and consultation with a qualified nu-
tritionist.
or programs which may be federally, State, or
privately funded). In either case, linkages with
For further information, see Appendices—
Health Promotion/Disease Prevention.
a comprehensive genetic service program
should be established, specifically with clin-
ical genetic services centers.
10.6 Related Services
Where feasible, in-service training in genetics
There are some reproduction-related health services
should be arranged for project staff to enable
that projects may offer if skilled personnel and
14
equipment are available, since to send clients else-
which provide prensial and/or intrapartum
where for diagnosis and treatment could contribute
care. If a family planning program undertakes
to fragmentation of medical care or result in no
responsibility for postpartum care, such care
care. If such services are to be offered, however,
should be directed toward assessment of the
projects should seek funds from appropriate agen-
woman's physical health, initiation of con-
cies (e.g., a Title V agency for prenatal care) or
traception if desired, and counseling and edu-
arrange to cover the cost for care through third-
cation related to parenting, breast feeding,
party payments (including government agencies) or
infant care, and family adjustment.
patient fees.
For further information, see Appendices and
If a project plans to provide any related services,
Related Documents-Maternity Services.
the following conditions must be met:
The project must assure that skilled personnel,
10.3 SPECIAL GYNECOLOGIC PROCEDURES
equipment, and medical back-up services are
available, and
Procedures such as colposcopy, biopsy, and
cryosurgery are useful in the diagnosis and
The project must receive approval from the
management of gynecologic abnormalties.
Regional Office.
Since such procedures and management re-
quire specialized training, they may be pro-
10.1 PRENATAL CARE
vided only under the supervision of a specially
qualified physician who has had appropriate
Clients with confirmed pregnancies who wish
training and experience in the colposcopic di-
to continue them to term must receive coun-
agnosis and management of cervical disease.
seling and continuing care. Projects must
Provision of this service must be limited to the
therefore refer pregnant clients for adequate
treatment of benign cervical disease. Care
prenatal care. However, projects may provide
must be taken to assure that provision of
prenatal care if the following conditions are
these procedures does not direct either pro-
met:
fessional or financial resources from the pro-
Documentation shows an unmet need
vision of basic family planning services.
and lack of other adequate sources of
prenatal care;
11.0 Clinic Management
The project has the capability to provide
11.1 EQUIPMENT AND SUPPLIES
prenatal care for non-high risk clients in
Equipment and supplies shall be safe, ade-
accordance with standards developed by
quate, and appropriate to the type of care
The American College of Obstetricians
offered by the project. It is the responsibility
and Gynecologists;
of the medical director to assure proper se-
Sources for newborn care are identified
lection and maintenance of equipment and
prior to delivery;
supplies.
The institutions to which clients will be
11.2 PHARMACEUTICALS
referred- for delivery and management of
complications have been involved in the
Projects must be operated in accordance with
establishment of the prenatal care ser-
State and Federal laws relating to security and
vice and assure continuity of care;
record keeping for drugs and devices. The
prescription of pharmaceuticals must be done
The project has appropriate linkages for
under the direction of a physician. However,
referral of high risk clients or those who
inventory, supply, and provision of pharma-
become high risk during the course of
ceuticals may be delegated by the medical
pregnancy;
director to appropriately qualified health pro-
Specific prior approval has been obtained
fessionals in accordance with State laws re-
from the Regional Office.
garding such delegation.
It is essential that each facility maintain an
Projects offering prenatal care must utilize
adequate supply and variety of drugs and
all other sources of funding for such services
devices to meet the contraceptive needs of its
before applying Title X funds for this activity.
clients. If special services are offered that re-
For further information, see Appendices and
quire the dispensing of additional medica-
Related Documents-Maternity.Services
tions, these should also be part of the inven-
tory. Each facility must maintain emergency
10.2 POSTPARTUM CARE
resuscitative drugs, supplies, and equipment
appropriate to the complexity of the program.
Family planning programs may provide post-
These should be in a location readily acces-
partum care for uncomplicated cases in col-
sible to the examination and treatment rooms.
laboration with local agencies or institutions
Facilities providing medical services shall, as a
15
minimum, have readily available those ele-
The record must also contain reports of
ments needed for the treatment of vasovagal
clinical findings, diagnostic and therapeutic
shock.
orders, and documentation of continuing care,
Contraceptive and therapeutic pharmaceu-
referral, and follow-up. The record must allow
ticals must be kept in a secure place, either
for entries by the counseling and social ser-
under direct and continu observation or
vice staff. Projects should maintain a problem
locked. Clinics which stock narcotics and tran-
list at the front of each chart listing identified
quilizing drugs must keep records proving
problems to facilitate continuing evaluation
count of the medications at the beginning and
and follow-up.
end of each day during which drugs are used.
State laws with regard to accountability must
Confidentiality and Release of Records
be followed. If Federal or State statutes per-
taining to record keeping, inventory, and dis-
A confidentiality assurance statement must ap-
pear on the client's record. The written con-
pensing cannot be met by the program, or if
sent of the client is required for the release
community standards of good medical care in
the performance of the above activities can-
of personally identifiable information, except
as may be necessary to provide services to the
not be met, projects should contract for such
patient or as required by law, with appropri-
services.
ate safeguards for confidentiality [59.11].
When information is requested, projects
11.3 MEDICAL RECORDS
should release only the specific information
Projects must establish a medical record for
requested. Information collected for reporting
every client who obtains medical services.
purposes may be disclosed only in summary,
These records must be maintained in accord-
statistical, or other form which does not iden-
ance with accepted medical standards. Rec-
tify particular individuals. Clients transferring
ords must be:
to other providers should be provided with a
copy of their record to exepdite continuity of
-Complete and accurate, including docu-
care.
mentation of telephone encounters of a
For more information, see Appendices-
medical nature;
Medical Records.
-Signed by the physician or other appro-
priately trained health professional mak-
ing the entry, including name and title;
11.4 QUALITY ASSURANCE AND AUDIT
-Readily accessible;
Projects must develop a quality assurance sys-
tem that provides for the continued develop-
-Systematically organized to facilitate re-
ment and evaluation of their services. The
trieval and compilation of information;
quality assurance system should include:
-Confidential;
A health care plan based on community
-Safeguarded against loss or use by un-
needs assessment which specifies all ser-
authorized persons;
vices to be provided routinely by the
project and which may also include addi-
-Secured by lock when not in use;
tional services for specific population
-Available upon request to client.
groups;
Content of the Client Record
A tracking system to identify clients in
need of follow-up and/or continuing
The client's medical record must contain suffi-
care;
cient information to identify the client, indi-
cate where and how the client can be con-
Quality review procedures to evaluate
tacted, justify the clinical impression or diag-
project performance, to provide feedback
nosis, and warrant the treatment and end
to providers and clients, and to initiate
results. The required content of the medical
corrective action when deficiencies are
record includes:
noted.
-Personal data
Medical audits to determine conformity
with standards must be an ongoing activity.
-Medical history, physical exam, laboratory
Monthly review of a reasonable number of
test orders, results, and follow-up
client records is an essential part of quality
-Treatment and special instructions
assurance.
For further information, see Appendices-
-Scheduled revisits
Quality Assurance/Audit.
16
1988 Regulations, Department of Health and Human Services
Tuesday
February 2. 1988
Part IV
Department of
Health and Human
Services
Public Health Service
42 CFR Part 59
Statutory Prohibition on Use of
Appropriated Funds in Programs Where
Abortion is a Method of Family Planning;
Standard of Compliance for Family
Planning Services Projects; Final Rule
Federal Register / Vol. 53. No. 21 / Tuesday. February 2. 1988 / Rules and Regulations
2923
Mr. Speaker. ! support the legislation
OGC opinions had been directed to
termination of pregnancies. This creates
before this body. I set forth in my extended
provision of guidance on which abortion
a conflict between the guidelines and
remarks the reasons why I offered to the
related activities were permissible
the statutory pronibition on Title X
amendment which prohibited abortion as a
within the section 1006 promibition. the
abortion
of
method of family planning With the
"pronibition of abortion" the committee
guidelines went a step further and
family planning
members clearly intended that abortion is not
required Title X projects to engage in
- In addition. the Department does not
to be encouraged or promoted in any way
abortion-related activities under certain
believe that the requirement that the
through this legislation. Programs which
circumstances. These guidelines for the
counseling must be "nondirective" :s
include abornon as a method of family
first time required nondirective "options
sufficient to render the guidelines
planning are not eligible for funds allocated
\counsleiing" on pregnancy termination
consistent with the statute. Counseling
through this Act.3
(abortion). prenatal care. and adoption
Thus. as clearly contemplated by Title
and foster care when a woman with an
in a Title X program. whether directive
X and its legislative history. "family
or nondirective. which results in
unintended pregnancy requests
planning" as circumscribed by section
information on her options. followed by
abortion as a method of family planning
--1008. permits only activities related to
referral for these services if she so
simply cannot be squared with the
facilitating or preventing pregnancy, not
requests. These guidelines were
language of section 1008. regardless of
for terminating it.
premised on a view that "non-directive"
whether the actual abortion occurs in
Initital Implementation Through
counseling and referral for abortion
another program operated by the
Advisory Opinions
were not inconsistent with the statute
grantee or in an unrelated program.
and were justified as a matter of policy
Finally. the 1981 guidelines are highly
Critical to an understanding of the
in that such activities did not have the
questionable simply as a matter of
rules below is an understanding of the
effect of promoting or encouraging
statutory policy. The policy that section
past history of the Title X program. The
abortion. It should be noted that
1008 reflects is that abortion is not to be
Department has. since 1972. interpreted
although OGC opinions continued to
encouraged or promoted in any way:
section 1008 not only as prohibiting the
interpret section 1008 as prohibiting any
nowhere in the statute is any
provision of abortion but aiso as
abortion referrals beyond "mere
countervailing policy reflected.
prohibiting Title x projects from in any
referral." that is. providing a list of
Nonetheless. the current guidelines
way promoting or encouraging abortion
names and addresses without in any
require Title X programs to counsel and
as a method of family planning. Further.
further way assisting the woman in
refer regarding abortion. Whether or not
based on the legislative history. the
obtaining an abortion (such as by
such a requirement is consistent with
Department has also. since 1972.
providing transportation or arranging
the express prohibition is section 1008. it
interpreted section 1008 as requiring that
appointments). this policy was not
is less sound as a matter of policy than
the Title X program be "separate and
reflected in the 1981 program guidelines.
the rules being promuigated today. In
distinct" from any abortion activities of
thereby creating an appearance of
sum. upon reexamination of the issue.
a grantee.
treating each option identically.
the Department is unable to conclude
Initially. the Department's
Upon review of the guidelines.
that the current guidelines are consistent
interpretation of the language of section
however. the Department for serveral
with the statute. Thus. one basis for the
1008 was limited to opinions of its Office
reasons no longer believes that these
regulations being_promulgated today is
of General Counsel (OGC). After quoting
approaches were correct. First. with
to bring program practices into
the passage from the Conference Report
regard to the consistency of the
conformity with the language of the
and the statement of Congressman
guidelines with the statute. counseling
statute.
Dingell. cited above. the first such OGC
and referral for abortion are prohibited
opinion concluded that "it is apparent
by section 1008. The Department does
Rational Basis for the New Regulation
that the Congressional intent was to
not believe that the current guidelines
prohibit a broader scope of activity than
can be viewed as consistent with
Even if the abortion counseling and
a literal reading of section 1008 would
referral provided for by the current
section 1008 on the ground that they
require." . In these opinions. however.
only involve counseiing and referral. not
guidelines were not prohibited by the
the Department generally took the view
the actual performance of abortions.
express language of section 1008. the
that activity which did not have the
Counseling and other informational
Department has concluded. as a matter
immediate effect of promoting abortion
services are some of the principal family
of its experience with Title X. its
or which did not have the principal
planning services provided by Title X
responsibility to administer the program
purpose or effect of promoting abortion
programs. and section 1008 is applicable
as provided by Congress. and its general
was permitted.
to all aspects of the program. Because
administrative discretion. that the
counseling and referral activities are
provisions of the current guidelines do
The 1981 Guidelines
integral parts of the provision of any
not faithfully and effectively maintain
In 1981. the Department issued revised
method of family planning. to interpret
the prohibition contained in section
Title X program guidelines. "Program
section 1008 as applicable only to the
1008. In the first place. the language of
Guidelines for Project Grants for Family
performance of abortion would be
the guidelines pertaining to section 1008
Planning Services." As with previous
inconsistent with the broad prohibition
is so brief and so broadly worded that it
editions of the guidelines. they did not
against use of abortion as a method of
fails to offer "clear and operational
incorporate prior OGC opinions
family planning. As discussed above.
guidance" to grantees about how to
providing guidance on abortion
"family planmng." as clearly
preserve the distinction between Title X
counseling. referral and program
contemplated by Title X and its
programs and abortion as a method of
separation. However. while the pre-1981
legislative history. refers to activities
family planning. Second in 1982. both
relating to facilitating or preventing
the Department's Office of the Inspector
115 Cang. Rec: 17373 (1970).
pregnancy. not to terminating it. The
General (OIG) and the General
. "Aboroons as & Mathod of Family
current guidelines. however. require
Accounting Office (GAO) urged the
Section 1008 of the Public Health Services Act"
grantees to involve themselves in
Department to give more specific.
(April = 1971)-
activities specifically related to the
formalized direction to programs about
2924
Federal Register / Vol. 53. No. 21 / Tuesday. February 2. 1988 / Rules and Regulations
the extent of prohibition on abortion as
abortion policy were contained only in
"choice" involved in regard to abortion. It is
a method of family planning.
legal opinions issued by its Office of
the only solution offered. : know this from
The OIG. after auditing thirty-two
General Counsel:
experience and have spoken :0 many women
Title X clinics. found that the
who have shared that experience.
Department's failure to provide specific
In effect. HHS' regulations that spell out
overail policy and implement provisions of
Please induige me a little longer to say this.
program guidance regarding the scope of
the law and corresponding program
they Ned :0 me. My third abortion required
section 1008 had created confusion
guidelines that elaborate on the law and
hospitalization and this was not done for the
about precisely which activities were
regulations in operational terms do not
others. So I pointedly asked why? Her
proscribed by the section. and had
contain the specific policy guidance
response. "No-weil. yes-it's the same."
resulted in variations in practice by
concerning section 1008 needed by title X
Now I have learned I submitted to a dilitation
grantees. In particular. the GAO. in a
recipients.'
(sic) and evacuation-second trimester
abortion. I never knew this unul three years
report based on an audit of fourteen
Accordingly. GAO stated that.
age. But I asked and she lied to me.
Title X clinics. found that the clinics
We recommend that the Secretary
The family planners holler about-and I
were relying on the Department's policy
estaölish clear operational guidance by
quote from their Action Alert here in
of permitting both Title X family
incorporating into the title x program
N.Y.) "Medical professionais have an
planning services and separately
regulations and guidelines HHS' position on
obligation to give patients information and
funded. abortion-related activities to be
the scope of the restriction in section 1008. 10
referrals on ail options. and patients have a
provided at a single site. In the report.
right to make an informed decision. (fully
Public comments received by the
GAO found that some of these providers
informed)" Where WCS mine?
had engaged in a number of practices
Department on the proposed regulations
Since Planned Parenthood is the foremost
further demonstrate the problems
that were questionable in light of section
abortion provider in the U.S. they have a
inherent in "nondirective counseling"
responsibility to tell women the truth about
1008. These included clinic counseling
and lend weight to concerns raised by
fetal development and subsequent risks
practices which did not present
alternatives to abortion. clinic referral
the OIG audit and GAO report Many
invoived in pursuing abornon as an option. I
comments argued that the practice or
know for a fact that they do not. The baby is
practices which went beyond HHS
nondirective counseling has been the
dehumanized as much as possible by being
referral policy.' and clinic literature
subject of widespread abuse. with many
termed a "blob." "products of conception." or
promoting abortion as a back-up method
"uterine contents." Not even the term fetus is
of family planning. Further. the GAO
providers foregoing any balanced
used by the counseiors. The very risky
found "questionable" lobbying
discussion of options in favor of
surgery is then passed over as safe (and]
expenses. including some instances
pressuring women. particularly
harmiess (and) there is no mention of
where clinics had used Title X funds to
teenagers. into obtaining abortions.
emotional or physical after affects. The
Numerous comments were received
pay dues to organizations that lobbied
counseiors are toid that any information on
and two instances where small amounts
from women who said that they were
fetal development is distasteful [and] should
never presented with any favorable or
not be used to avoid making the woman feel
of programs funds has been used
neutral information on any other option.
guilty. Since my abornon. I have had :
directly for lobbying. GAO observed
Many of these commenters specifically
miscarriages.
that the specifics of the Department's
mentioned experiences with particular
If I had been given proper information as to
the development of my 12 week old child and
Title X grantees or projects. A typical
'Comp. Gen Rep. No. GAO/HRD-82-108.
if I had been presented with options to
"Restrictions on Abortion and Lobbying Activities
complaint was that the counseling that
abortion rather than just aboraon (given by
in Family Planning Programs Need Clarification." p.
they had received was one-sided. with
the F.P. clinic) I would have had my baby.
22 (1982) (hereafter referred to as "the GAO
the fetus dehumanized as a "lump of
I had an abortion at the age of 16 years
Report".)
tissue." "fetail tissue." or "uterine
with the fuil encouragement of
in
"At one clinic discussed in the report. women
contents." and with no information
CA. They even cailed and made my first appt.
were required to complete paperwork before their
presented as to gestational
to see the Dr. who would perform my
pregnancy tests and preselect how they intended to
deal with their pregnancy. If they chose to continue
characteristics and stage of
abortion. There was no encouragement to
the pregnancy. they were counseled on that option.
development. so that they were not
consider adoption or to keep my baby. They
If they checked abortion. they were counseied only
given adequate information on which to
helped me to get rid of my baby as quickly as
on that choice. Six other clinica. which did not
possible.
require prepregnancy test decisions. did not
make an informed choice regarding
I was not given a complete picture of my
rounnely counsel women on other alternatives if
abortion. These commenters typically
situation. Therefore the decision I made for
they had decided on abortion.
stated that they had experienced severe
abortion was no decision at all. It was a
'Four clinics provided clients with brochures
and long-lasting regret over the decision
prepared by abortion clinica. At two clinica, clients
coercion. Sixteen year old giris do not have
sweking abortions were silowed to use the
to abort and also stated that they were
the where-with-all to make such a life
telephone to make appointments for abortions. At
given no counseling at the time they
threatening. life changing decision especially
one clinic supointments for abordon were made for
made their decision to abort as to the
when the choices given are so deceitfully
clients who aid not speak English At one clinic the
remorse and guilt they might later feel:
incomplete. If I had known the reality of what
Title x recipients provided woman loans for
I chose I would not have chosen an abortion.
abortions for nonprogram funds: however.
I have experienced the one-sidedness of
I killed my babyt How would you feei/react if
administrative costs associated with the referral
"$ "counseling" and have seen the
and loans were charged to Title X program costs.
someday several years after abortion you
consciences of friend's (sic) shattered by
The GAO Report aiso noted OIG's discovery that
saw pictures of a 12 week oid ferus and
several Title x clinics in Indiana had provided and
what they now know was the wrong choice.
learned this was the picture of a perfectly
witnessed the signing of consent forms required by
Too many people are literally encouraged to
formed human being. Hmmm- [they]
an abortion clinic.
use abortion as a birth control device
told me it was a "blob!" I was devastated
"One Texas clinic showed all clients a film about
because of its availability.
has never
beyond ail description.
birth control methods and starilization that included
discussed the alternative side with anyone I
I was a seventeen year old who had just
a section that presented abortion as a legal
know. I don't feel guilty or presumptive
cailing their efforts exploitive.
found out I was pregnant.
alternative in the event of an unwanted pregnancy.
I couldn't get
Four clinics provided or made available to all
out of school to visit so they sent of
These clinics do not provide adequate
clients entering the family pienning program
information to pregnant women. There is no
nurse to see me. She blew my spirit down so
handout material that discussed abortion. Typically
much.
I expected her to help me and
this material listed various birth control methods
she wanted to destroy a little. innocent baby
with the barrier method and early abortion in the
The GAO Report. p. 14-15.
for convenience. She said. "There's no way
event of a failure as an siternative method.
"The CAO Report. P. =
you can bring a child into this world and take
Federal Register / Voi. 53. No. / Tuesday. February 2. 1988 ! Rules and Regulations
2925
care of it on your own. It isn) fair to the
"grantee." "organization." and "Title X"
transmitted diseases. screening for
baby. People will speak badly of you. How
elicited very little comment. the
breast concer- that they have
can you .et a baby be born with no father and
remaining definitions were the subject
no name? What about school? You can't
traditionally provided.
finish 12th grade walking around pregnant.
of extensive debate. In addition. a few
A common objection was to the
What kind of life would that be?
Then
comments suggested that other terms be
exclusion of prenatal care from the
she suggested an abortion. I started crying.
defined to ciaruy the proposed rules.
range of services offered by Title X
All : could !eei was why would anyone want
P.. Comments.
clinics. Citing the 1970 Senate committee
to kill
her own flesh and blood
report. they argued that Title X projects
and why was she urging me to do this?
1. "Family planning": As preposed.
were intended to be providers of
The Department accordingly.
this term was defined as-
comprehensive family planning services
concludes that there is an adequate
the process of establishing objectives for the
and that family planning involves more
basis for this rule since it is reasonable
number and spacing of a family's children.
than birth control. Many providers
in light of all the circumstances. See
and selecting the means (including natural
argued that the time at which pregnancy
Chevron. U.S.A.. Inc.. V. Natural
family planning methods. adoption. inferulity
services and general reproductive health
is diagnosed is the optimal time to
Resources Defense Council. Inc. 478
care. abstinence and contraception) by which
educate pregnant clients as to proper
U.S. 837 (1984).
those objectives may be achieved. As such,
nutrition and the importance of avoiding
The New Regulation
family planning does not include medical
high-risk behavior-such as smoking.
services or counseling after pregnancy is
consumption of alcohol. drug abuse. and
The rules below. which are issued
diagnosed (including prenatal or postpartum
management of weight gain-as early
pursuant to the Secretary's rulemaking
care or counseling). or abortion-reiated
pregnancy is when organogenesis is
authority at 42 U.S.C. 300a-4(a).
services. As it relates to the statutory
proceeding most rapidly. These
establish far more specific and clearer
prohibition on the inclusion of abornon as a
standards for compliance with section
method of family planning. proper family
comments asserted that terminating the
1008. They focus the emphasis of the
planning should reduce the incidence of
Title X project's invoivement with the
abortion.
client at this point would have
Title X program on its traditional
Numerous providers and provider
significant adverse public health
mission: The provision of preventive
organizations objected to this definition.
consequences (such as an increase in
family planning services specifically
designed to enable individuals to
A large number of comments took issue
low birth weight. maternal and infant
determine the number and spacing of
with the first sentence of the definition.
health complications. and infant
their children. while clarifying that
First some commenters pointed out that
mortality). as the disadvantaged status
pregnant women must be referred to
by limiting the definition of "family
(i.e., youth. poverty. low education) of
appropriate prenatal care services. H.
planning" to services provided to
most of the program's clientele makes it
"families." the Department would be
uniikely that they will obtain adequate
Rep. No. 91-1472 91st Cong.. 2nd Sess.
excluding from coverage single
prenatal care from other sources in a
(1970). reprinted at 3 U.S. Code Cong. &
timely fashion. A number of providers
Adm News 5071 (1970). In addition. they
individuals. whom Congress intended to
require-that grantees maintain program
be served. Other comments objected to
argued that for many Title X clients. the
integrity and separation. The
the items included in the parenthetical
Title X project constitutes their only
regulations. however. do not restrict the
expression in the first sentence of the
source of health care due to factors such
definition. Many providers argued that
as geographic isolation. unwillingness of
use of funds outside the Title X program
or impose restrictions on funds provided
listing "contraception" at the end of the
other providers to accept non-paying
under other federal programs. Nor do
list of family planning methods de-
clients. or the inability of the clients to
they prevent a woman from seeking and
emphasizes its importance in Title X
arrange for care themselves. It was
and converts Title X into a program that
argued that the effect of the definition
obtaining an abortion outside the Title X
is principally designed to encourage
will be to create a dual system of health
program. They thus make no attempt to
establish abortion restrictions beyond
abstinence and promote adoption.
care in which the poor served by Title X
the parameters of a Title X project
contrary to Congress's intent The
clinics are relegated to inferior health
Although the rules below thus adhere
inclusion of "adoption" as a method of
care. while the population that can
to the broad policies laid out in the
family planning elicited a mix of
afford to pay for care will continue to
proposed rules. a number of changes in
comments. Some providers thought its
obtain prenatal care.
particular provisions have been made in
inclusion inappropriate and inconsistent
Similar concerns were noted with
with the overall mission of Title X while
respect to the exclusion of postpartum
response to concerns raised by the
others favored its inclusion. A few
care from the definition of family
public comments. A summary of these
comments. an expianation of the
comments pointed out that adoption and
planning. In addition. some commenters
infertility services do not St in
contended that the exclusion of
changes to the final rules. and the
Department's responses to the
conceptually with preventive methods of
postpartum care is inconsistent with the
family planning. A few commenters
statute. First. many health professionais
remainder of the comments are set out
below.
were concerned that the reference to
and providers argued that proper
infertility services in the parenthetical
medical practice dictates that family
Discussion
expression not be construed as
planning counseling and selection of a
L Definitions
connoting approval of in vitro
family planning method be done
fertilization. surrogate motherhood. and
postpartum. as that is when it is most
The proposed rules set out a series of
the like. Finally. concern was expressed
likely to be effective: exclusion of
definitions to be added to the regulatory
that the definition in general and the
services at that point. they argued.
definitions at 42 CFR 59.2 The
first sentence in particular would
would be thus inconsistent with the
additional definitions proposed were of
preciude Title X projects from
statutory emphasis on the provision of
the terms "family planning". "grantee",
continuing to provide the range of health
"comprehensive
and effective
"organization". "program" and
services- such as physical
family planning services
"project". and "Title X". While the
examinations. gynecological services.
Second. several comments argued that
suggested definitions of the terms
screening and treatment for sexually
the legislative history itself indicates
2926
Federal Register / Vol. 53. No. 21 / Tuesday. February 2. 1988 / Rules and Regulations
that projects are supposed to provide
be defined in order to clarify the scope
preventive methods of family planning in
family planning services to women
of the regulatory policies. Among the
the postpartum period. and has
"shortly after childbirth." quoting the
terms that were suggested for definition
accordingly eliminated the exclusion
1970 House and Conference Reports.
were "abortion" "abortion-reiated
from the definition With respect to the
Numerous comments objected to the
services." "prenatal services. "low-
comments criticizing the use of the word
use of the phrase "abortion-related
income family." and "medically
"families." the definition has been
services" in the exclusionary portion of
indicated." With respect to the term
conformed more closely to the language
the definition of "family planning" on
"abortion." questions were raised about
of Title X. clarifying that the eligibility of
the ground that the former term was
its meaning. and it was suggested that
individuals will not be affected by the
vague and overbroad. In addition. it was
procedures such as "menstrual
regulation. Finally. with respect to the
argued that the exclusion of "abortion-
regulation." "menstrual extraction." and
argument that the definition of family
related services" makes the definition
"endometrial aspiration" be included in
planming was logically inconsistent with
inconsistent in that abortion is excluded
any definition of abortion since these
the rest of the regulation because of the
as a method of family planning. while
are euphemisms for proecedures which
exclusion of "abortion-related services."
there are repeated references in the
are actually abortions. The term
it has modified the definition of the term
remainder of the regulation to "abortion
"abortion-reiated services" was widely
to make clear that while abortion may.
as a method of family planning."
criticized as vague: comments asserted
in a statutory sense. constitute "a
Supporters of the regulations
that it could include services such as
method of family planning." it is an
generally favored adoption of the
housekeeping or laundry if shared by
impermissible method in programs
definition as proposed. However. a few
the abortion component of a medical
supported by funds appropriated under
reservations were expressed concerning
facility. With respect to the term
the title.
its coverage. It was suggested that the
"prenatal services." it was suggested
Although the Department has not
limitation on the provision of abortion-
that the term be defined to include
accepted the suggestions that it delete
related services and prenatal and
services to protect both maternal and
the references to "adoption" and
adoption services for pregnant women
fetal health and that referrais not be
"infertility services" in their entirety
be explained to clarify that although
allowed where the provider is primarily
from the definition of "family planning."
prenatal and adoption services are not
a provider of abortion services. It was
it has modified the definition in
preventive family planning services.
suggested that the current regulatory
response to the concerns raised Both
they are not subject to the same stigma
definition of "low-income family" be
approaches constitute legitimate means
as abortion services. which are
changed to delete the provision which
of determining family size and spacing.
specifically prohibited by the statute. It
requires that unemancipated minors
but adoption is simply one means of
was therefore suggested that the
who wish to receive services on a
addressing the broader problem of
regulations should permit and support
confidential basis be considered on the
infertility. Thus. the term "infertility
efficient and formalized referral
basis of their OWN resources. It was
services" in the definition has been
processes to assure access to prenatal
suggested that the term "medically
changed to make this relationship clear.
and adoption services. It was aiso
indicated" be clearly defined to prohibit
With respect to the criticism that the
suggested that the proposed definition
referral for abortion or abortion-related
definition should be limited to
was still inadequate. in that it would not
services except where the life of the
permit crisis pregnancy centers to be
preventive methods of family planning
mother is in imminent danger as in the
funded as Title X grantees. since
only. it is clear that Congress intended
case of an ectopic pregnancy. or defined
the term "family planning" to be broader
abortion counseling which discourages
to prohibit any referral for abortion.
abortion is not within the definition.
in scope than simply contraception. as
With respect to the term "organization."
2. "Program" and "project": This
infertility services are included as one of
proponents of the regulation argued that
proposed definition elicited a number of
the mandatory services listed in section
it was unclear and appeared to treat as
comments. primarily from supporters of
1001(a) of the Act With respect to the
separate organizations an organization's
the proposed rules. In general. these
comments suggesting that inclusion of
activities in several States. creating a
comments objected to equating the
infertility services should not permit
cumbersome situation for the grantee.
terms program and project. contending
They suggested that the definition be
funding of in vitro fertilization. surrogate
that the definition of "program" as
motherhood and similar methods of
clarified to cover a legal entity chartered.
applied to receipt of Title X funds was
in one State and authorized to do
providing children to childless couples.
not consistent with the ordinary usage
business in several States.
the Department continues to construe
and meaning of the term and allowed
the term. as it has in the past. as
grantees artificially to manipulate
B. Response
requiring only the provision by the Title
compliance. The commenters argued
1. "Family planning": The Department
X project of what are known as "Level
that the Department's longstanding
acknowiedges that the definition has
I" services (i.e. initial infertility
interpretation of the terms as being
caused misunderstanding in several
interview. education. examination.
interchangeabie for the purposes of
respects and has revised the proposed
appropriate laboratory testing.
administration of section 1008 is wrong
definition of this term accordingiy. First
counseling and appropriate referral).
and permits projects funded under Title
it was never the Department's intention
The Department notes that a number
X to evade the restrictions of section
to suggest that contraception is to be
of the objections to the proposed
1008 by simple bookkeeping maneuvers.
deemphasized in the Title X program: to
definition were premised on a
Proponents wanted to strengthen the
make that perfectly clear. it has placed
misinterpretation of its scope. The
regulation to prevent grantees from
the term "contraception" at the
Department agrees that family planning
simply omitting certain items from their
beginning of the list of services to be
is broader than just the provision of
grant proposal while in fact including
provided in the second sentence of the
contraceptive services. but it disagrees
prohibited activities within the program.
definition. In addition. it agrees that
that either the proposed definition or the
3. Other definitions: In addition. a few
exclusion of postpartum services was
definition below so restrict the term:
comments suggested that other terms
inappropriate to the extent that it
see. in particular. the inclusion of
used in the proposed regulations should
appeared to exclude provision of
"general reproductive health care" and
Federal Register / Vol. 53. No. 21 / Tuesday. February 2. 1988 / Rules and Regulations
2927
infertility services" in the definition.
agree that low income clients will
this is the rationale for promulgation of
Moreover. it is not correct that the
receive inferior care to what they are
$ 59.9 below.
proposed definition would exclude
now receiving. Indeed. the provisions
However. in response :0 the confusion
physical examinations. screening for
emphasize the importance of helping
expressed by many commenters on this
breast cancer or treatment of
clients to receive appropriate prenatal
issue. the Department has changed the
gynecological problems. All of these
care through referral.
rules below to provide a separate
services continue to be authorized under
The Department concurs in comments
definition of the term "program" and
the definition. either concomitant to
that the regulations should clarify that.
"project" that recognizes the generic
providing contraceptive services or as
although beyond the scope of Title X.
meaning of those terms as use in the
"general reproductive health care." In
prenatal services and adoption services
statute and their commonly understood
addition. services not related to
for pregnant clients do not fail under the
usage in the grantee community. Two
pregnancy which are necessary to
same statutory prohibition that abortion
new terms. "Title X program" and "Title
general reproductive health care. such
services do. The regulation thus clarifies
X project" have been added
as treatment for sexually transmitted
that while Title X does not fund
corresponding to the original definition
diseases. continue to be authorized
prenatal care. Title*X projects are
of program and project in the proposed
under the definition.
required to facilitate access to prenatal.
rules. These latter terms. as defined
While the Department concurs in
care and social services. including
below. carry substantially the same
comments regarding the importance of
adoption services. that might be needed
meaning as originally proposed and
early access to high quality prenatal
by the pregnant client to promote her
clarify the scope of the regulatory
care. it does not believe that Title X was
weil-being and that of her child. while
requirements. However. to clarify a
intended to provide prenatai.care. and
making it abundantly clear that the
point that apparently confused many
therefore does not accept the suggestion
project is not permitted to promote
commenters. a sentence has been added
that the exclusion of prenatal care from
abortion by facilitating access to
in the latter definition relating to what
the definition of "family planning" be
abortion through the referral process.
constitutes Title X project funds. The
dropped. It disagrees with the argument
See the definition of "prenatal care" at
Department's concern is that all funds
that the exclusion is inconsistent with
$ § 59.2 and 59.8 below.
allocated to the Title X program or
the statute. The 1970 Conference Report
to Pub. L 91-572 makes it abundantly
Finally. the Department rejects the
project-whether they are direct Title X
clear that while medical services are
argument that these regulations are
grant funds. program or grant-related
clearly permitted under Title X they are
objectionable because they create a
income. or matching fund-be spent in
compliance with section 1008 and that
authorized only when related to
"two-tier" system of health care. i.e..
the program be separate and distinct
population research. infertility services
clients of Title X programs. many of
from prohibited abortion activities. The
of preventive family planning services.
whom are low-income. are prohibited
definition in the final regulation
The exclusion of prenatal care is
from receiving abortion counseling and
accomplishes this statutory mandate.
consistent with this concept.
referral. while wealthy women can
obtain these services from their own
The above definitional changes
In addition. provision of prenatal-
services. like the requirement for
physicians. In section 1008 Congress
necessitated minor conforming changes
to the existing regulations. These
pregnancy options counseling. was not
chose to prohibit the provision of
changes are set out at items 4 and 6 in
included in program guidelines prior to
abortion services by Title X programs.
the rules below.
1981. Moreover. under the 1981 program
This choice-like any choice to impose
guidelines. prenatal services (other than
restrictions on the use of federal funds—
3. Other definitions: The Department
necessarily creates a "two-tier" system
has defined the term "prenatal care" in
initial diagnosis and counseling) may
response to the public comments on this
only be provided by Title x projects in
to the extent that any legaily obtainable
service is available in the marketplace
issue. It has not included any other
very specific and limited circumstances
and with prior approval from the
and unavailable in the federal program
definitions as it does not agree that they
are needed or appropriate here. It has
relevant regional office of the
where such services are prohibited by
deleted the definition of the term
Department. Since 1981. very few Title X
law. Commenters may believe that this
"organization" because it believes the
projects have requested or received this
is unsound as a matter of social policy
definition is self-evident and
authority. At the present time. for
because they believe the federal
unnecessary. The Department has not
instance. we are aware of only two
government should fund all medical
defined the term "medically indicated"
grantees in one region that have
care. If so. however. their remedy lies
because. as used in § 59.5(b)(1). it refers
received approval to provide extended
with Congress. not with the Department
to an infinite variety of physical
prenatal services as part of their Title X
which manifestly lacks the legal
conditions aside from pregnancy.
projects. Thus. it is not correct. as
authority to implement such a social
making further definition infeasible. As
contended by some commenters. that
policy.
the proposed rules did not address the
prenatal services have traditionally
2 "Program" or "project": The
issue of defining the term "low income
been a major component of the Title X
Department believes that it is not
family." the definition remains
program. Nor does the Department agree
supportable. in light of the legislative
unchanged. The term "abortion-reiated
with the commenters that the exclusion
history in the 1970 Conference Report. to
services" has not been defined because
represents unsound public health policy.
read the term "program" in section 1008
it is no longer employed in the text of
so long as it is clear that the Title X
as relating to the funded organization as
the rules below. The Department has not
project must facilitate obtaining the
a whole. as urged by some comments.
defined the term "abortion" because it
prenatal care necessary for a healthy
The Department agrees that a Title X
believes the meaning is clear.
pregnancy. Because Title X has never
project must be separate and distinct
funded substantial amounts of prenatal
from abortion activity and that "simply
II. Standards of Compliance
care and thus availability of prenatal
omitting offending items from their grant
The proposed rules provided that a
services would be unaffected by these
proposals" does not constitute sufficient
project may not receive funds unless it
provisions. the Department does not
compliance with this precept. Indeed.
provides assurances satisfactory to the
2928
Federal Register / Vol. 53. No. 21 / Tuesday. February 2. 1988 / Rules and Regulations
Secretary that it does not include
Proposed $ 50.8(a). In addition. proposed
provisions would substantially correct
abortion as a method of family planning.
§ 59.8(b) set out three examples
this. They also contended that the
Such assurances must include
interpreting the regulatory language
counseling requirements in current
representations (supported by
relating to counseling proposed
guidelines wrongfully require
documentary evidence where the
$ 59.3(b)(1) related to the provision of
organizations to engage in abortion-
Secretary requests) as to compliance
prenatal services by the Title X project.
related activities in order to become a
with each of the requirements of the
which was termed impermissible:
Title X grantee. Further. they maintained
proposed regulations.
proposed $ 59.8(b)(3) related :0
that such guideline requirements have
counseling for infertility and adoption
been abused by Title X providers. who
A. Comments
for an infertile couple. which was
have in fac: pressured pregnant women.
Some commenters suggested that
termed permissible: and proposed
particularly teenagers. to choose
provisions be added which would
§ 59.8(b)(4) related to the provision by
abortion. They maintained that the
prohibit the funding of a program where
the project of a brochure and a film that
consequent loss of life involved
there are special risks that Title X funds
include sections on abortion. which was
together with the emotional and
will be used for abortion-related
deemed to render the project ineligible
physical effects on the women who
activities due to abortion advocacy
for Title X funds.
aborted. are unacceptable in a program
activities of the organization. They
A. Comments
which was intended to have no
maintained that recognition of
connection with abortion at all. much
organizations having special risks. and
These provisions elicited the most
less with the promotion or facilitation of
denial of funding where such risks exist.
extensive comments of any provisions of
abortion.
will facilitate the implementation of the
the proposed rules Thousands of
1. Medical ethics: Numerous
Title X program as Congress originally
comments were received in opposition
providers. provider organizations. and
intended Commenters then went on to
to the proposed provisions. while
health professionals argued that the
thousands likewise were received
list serveral examples of special risks
proposed restriction of abortion
associated with grants to advocacy
supporting the proposed policies. The
counseling is countrary to sound
main issues addressed by opponents
organizations. including situations
medical practice and the canons of
which would place an abortion
and propon ats are summarized below.
medical ethics. Basically. they
Opponents of the counseling
advocacy organization in a government-
contended that medical ethics require
provisions advanced the following
sponsored position of great influence
that a physician provide his patient with
objections. (1) They would require
with persons of special vulnerability.
a full discussion of his view of her
providers to engage in unethical and
facilitate abortion in conflict with the
medical circumstances II order to
unprofessional counduct (2) they would
purpose of the Title X program. or make
enable her to make an informed choice
require providers to treat Trtle X
personnel choices for reasons foreign to
as to treatment nurses and social
patients. both for contraceptive services
the purpose of the grant
workers stated similar concerns. In this
and at the point of pregnancy diagnosis.
B. Response
without informed consent (3) because of
regard. a number of comments quoted
the following statement from the 1982
the two preceding factors. Title X
The Department notes that the
projects would be exposed to increased
Report of the President's Commission
suggested provisions relating to
for the Study of Ethical Problems in
risk of tort liability. an increase in
advocacy organizations were derived
Medicine and in Biomedical and
insurance costs or inability to obtain
from the Public Health Service's (PHS)
Behavioral Research:
insurance. and a decressed ability to
Grants Administration Manual policy
hire or retain competent family planning
a physician is obligated to mention all
relating to "Exceptional Organizations."
professionals. (4) these factors would in
alternative treatments. including those he or
a policy which has recently been revised
turn mean that as a practical matter.
she does not provide or favor. so long as they
by the Department. While the
present Title X projects would be forced
are supported by respectable medical
Department agrees with the concept
to relinquish their title X funds. resulting
opinion.
behind the proposed provision. it
in a net loss of services to the Title X
Also cited were the American Medical
believes that itis more appropriate to
client population: (5) there is no
Association's (AMA) principles of
deal with the issue on a broader PHS-
evidence to show that the proposed
medical ethics. which state that patients
wide level Furthermore. the Department
provisions are needed: (6) the proposed
"are entitled to accept or reject a health
believes that the risks associated with
provisions are inconsistent with Title X:
care intervention on the basis of their
funding advocacy organizations will be
(7) the proposed provisions violate the
own personal values." and the
substantially mitigated through
First Amendment rights of providers and
Standards for Obstetric-Gynecologic
implementation B. the requirement of
health professionals in that they
Service. Sixth Edition. (Standards) of
separation between Title X programs
constitute viewpoint discrimination and
the American College of Obsterricians
and activities prohibited under section
restriction of free speech: and (8) the
and Gynecologists. which state:
1008 and the rules pursuant thereto.
proposed provisions impermissibly
It is the physician's responsibility to inform
III. Counseiing
burden women's exercise of their right
the pacient of the surgical or medical
to an abortion and violate the due
procedure being recommended. in most
Section 59.8 of the proposed rules
process rights of physicians and other
cases. the expianation should include the-
provided. among other things. that a
health professionals to practice their
necessity of the treatment. the management
project which
profession.
alternatives. the reasonably foreseeable risks
provides counseling
for abortion
Proponents of the regulations. on the
and hazards invoived. the chances of
services as a method of family pianning is not
other hand. argued that the proposed
recovery and the likelihood of desired
eligible to receive funds under this subpart. In
provisions are needed to strengthen the
outcome. Adequate opportunity should be
addition. because Title x funds are intended
implementation of section 1008. They
provided to encourage and answer questions.
only for family planning. services related to
contended that Title X is in effect
It was asserted that the proposed
pregnancy care after pregnancy is diagnosed
promoting abortion through current
provisions would require providers to
may not be provided with Title X funds.
guideiines and practice. and the
violate the canons of ethics governing
Federal Register / Voi. 53. No. 21 / Tuesday. February 2. 1988 / Rules and Regulations
2929
their professions and thereby expose
subject to widespread abuse. with many
3. Liability and licensure rishs:
them :0 liability for malpractice. In this
providers foregoing any balanced
Because of the foregoing factors. many
regard. opponents of the provisions
discussion of options in favor of
providers and provider organizations
stated that the provisions would require
pressuring women. particularly
argued that the proposed provisions
them to treat women differently
teenagers. to obtain abortions.
present unacceptable risks for providers.
depending on their medical
Other comments argued that by
Specifically. they argued that failure to
circumstances. For example. the
requiring "options counseling." the Title
disclose relevant risks and
provision was commonly interpreted as
X guidelines promote a moral relativism
considerations to individuals. either in
meaning that a nonpregnant woman
which holds that all options are equally
the process of counseling regarding the
who has a severe diabetic or
valid morally. without providing for the
selection of a method of birth control or
hypertensive condition could. under the
expression of moral arguments opposed
concerning pregnancy once pregnancy is
provision. be counseled with respect to
to abortion or discussion of potential
diagnosed. would subject them to
management of the condition. while a
psychological consequences of abortion.
liability for maipractice on several
pregnant woman could not be:
This. it is argued. results in abortion
possible tort grounds: defective consent.
It was also argued that the provision
being presented as the easiest. quickest
abandonment. negligent failure to
would require physicians to remain
and least harmful solution when in fact
disclose. "wrongful birth"/"wrongful
silent when confronted with a pregnant
it may not be. and when it should in any
life". Cases such as Conterbury V.
patient with medical conditions which
event not be so presented in a program
Spence. 464 F. 2d 772 (D.C. Cir.. 1972).
may be exacerbated by pregnancy. such
that has a statutory bias against
Scott V. Bredford. 606 P. 2d 554 (Ckla..
as diabetes. multiple scierosis. lupus. or
abortion as a method of family planning.
1979), Betesh V. U.S.. 400 F. Supp. 238
AIDS. These commenters apparently
2. Informed consent Opponents of the
(D.D.C., 1974) were cited as examples of
interpreted the provision as preciuding
proposed provisions expressed similar
the types of tont liability to which the
any further discussion of medical
concerns relating to the issue of
proposed provisions would expose
symptoms or any other matter once
obtaining informed consent so as to
providers.
pregnancy is diagnosed. Other
minimize the likelihood of maipractice
Accordingly. some commenters
commenters maintained that since the
claims. While most of the comments
asserted that they would probably face
risks associated with both pregnancy
relating to the issue of informed consent
suit if they complied with the proposed
and abortion increase substantially once
raised the liability concerns discussed in
provisions. and moreover. might find
the eighth week of pregnancy has
the preceding section. a number of
that they were uninsurable. It was also
passed it is unethical to withhold
additional concerns were also raised. A
argued that compliance with the
information about both at the time
number of grantees and provider
proposed provisions would place health
pregnancy is diagnosed.
organizations argued that prohibiting
professionals (particularly physicians)
Proponents of the provisions.
provision of information relating to
in many jurisdictions at risk of losing
however. disputed that prohibiting
abortion precludes obtaining an
their licenses. For example. the Attorney
discussion of abortion is unethical and
informed consent from the patient.
General for the State of Massachusetts
instead contended that the requirements
either with respect to continuation of
stated that physicians could lose their
for "options counseling" in current
pregnancy or with respect to selection of
licenses in Massachusetts if they
guideiines are the ethical problem. It
a method of birth control. This. it was
complied with the regulations. It was
was noted for example. that the House
argued. would place grantees in the
argued that health professionais would
of Delegates of the AMA has
position of violating laws relating to
find these risks unacceptable. Thus. it
consistently confirmed the right of
informed consent of over 40 states:
was claimed that the regulations would
practitioners to abstain from
specifically mentioned were California.
mean that Title X providers would be
involvement in abortions. In this regard.
Maryland. Michigan. Massachusetts.
unable to attract or retain competent
it was argued that the ethical standard
New York. and Wisconsin.
professional staff.
inherent in the AMA standards and
Proponents of the regulations. on the
Proponents of the regulations. on the
eisewhere is not that a physician must
other band. argued that the requirement
other hand. argued that the same
counsel or refer. but rather that the
of informed consent. in jurisdictions
Supremacy Clause considerations
physician need not counsel or refer for
where it applies. applies only to medical
described in the preceding section
abortion. It was noted that laws in
treatment. not to counseiing which leads
would protect providers from successful
approximately 40 states protect the right
to referral. Since the proposed rules
suit. They accordingly argued that the
of medical personnel not to participate
provided that pregnant women would
proposed regulations should not
in medical procedures such as abortion
not receive treatment for pregnancy in
increase providers' liability and
on the basis of conscience. Some
the Title X project. the requirement to
licensure risks.
maintained that as providers in a
obtain informed consent for services
4. Impact on Title X client population:
preventive family planning program.
relating to pregnancy does not arise.
Opponents of the proposed provisions
Title X providers are not qualified to
They also argued that the informed
thus argued. based on the above
provide services after pregnancy is
consent laws of various states would
reasons. that the net effect of the
confirmed
not present a problem for Title X
proposed provisions relating to
Numerous commenters argued that
providers. as they would be superseded.
counseling would be to force current
the policy of requiring Title x providers
pursuant to the Supremacy Clause of the
Title X providers to reject Title x funds
to perform nondirective counseling that
Constitution. to the extent they imposed
entirely. A number of comments argued
has been applicable in the past violates
requirements inconsistent with Federal
that the proposed provisions are
medical ethics by excluding from the
regulation. Those who stated that they
inconsistent with requirements
program organizations which. for moral
had an abortion and had not been
applicable under other State and federal
or religious reasons. refuse to counsel or
counseled about its effects argued that
programs (such as the programs of
refer women for abortions. In addition.
they could not have informed consent
grants to migrant and community health
many comments argued that the practice
because they had not been given
centers under sections 329 and 330 of
of nondirective counseling has been
complete information.
the Public Health Service Act and block
2930
Federal Register / Vol. 53. No. 21 / Tuesday. February 2. 1988 / Rules and Regulations
grants to States for maternal and child
information and that the purpose of
that therefore the statement in :he
health programs under Title V of the
counseling programs is to provide
legislative history of the 1970 ac: that
Social Security Act). Commenters
information upon which a course of
"information would be provided on the
making this point contended that they
action will be based on the ground that
full rance of family planning methods."
would have to elect between sources of
it equated the provision of information
means that abortion counseling must be
funding: they typically stated that they
on mutually exclusive choices with
provided norwithstanding the
would reject Title X funds. Thus. it was
promotion of a particular choice. It was
prohibition. Representauve Dingell
argued. a net loss of services to the
argued that. under the theory advanced
criticized the use of his 1970 floor
population currently served by Title X
in the proposed rules. counseling
statements as support for the proposed
would result. Planned Parenthood of
teenagers about contraceptive methods
restrictions on counseling and referral.
Pierce County, Washington. for instance.
or suicide would never be appropriate.
His comments focused in particular on
said that if it rejected Title X funds.
Furthermore. with respect to the issue of
what he saw as the failure of the
approximately 5.000 low income women
evidence. numerous grantees stated that
Department to take account of the
in that county would be placed at risk of
they have always been and are
evolution of the law. that is. the
unwanted pregnancies: Planned
presently in compliance with the
Supreme Court's decision in Row v.
Parenthood of Chicago said that if it
requirement to separate their Title X
Wade. 410 U.S. 113 (1973). and its
rejected Title X funds. "tens of
projects from their abortion-related
progeny. It was also argued that the
thousands" of teenage and low income
projects. A number of these comments
proposed provision is inconsistent with
women would be placed at risk.
challenged the evidentiary basis for the
the Department's own regulations in the
Proponents. however. asserted that the
Department's action. arguing that the
food and drug area. which the comments
regulations would have à positive
1982 GAO and Inspector General reports
contend require manufacturers of oral
impact on Title X clients and their
cited in support of the proposed rules in
contraceptives and intrauterine devices
babies by helping protect pregnant
fact established that the audited
to provide patient package inserts
clients. particulariy adoiescents. from
grantees had not spent Title X funds in
expiaining the risks of the respective
receiving incomplete counseiing that in
contravention of section 1008.
contraceptive methods. including some
effect promoted abortion and facilitated
Proponents of the proposed rules. on
information on abortion. Numerous
obtaining an abortion. to the client's
the other hand. overwhelmingly thought
providers contended that. under the
(and. obviously. the unborn child's)
that the proposed restrictions were
regulations. they would be prohibited
long-term emotional and physical
needed. As noted in the Rational Basis
from prescribing or dispensing
detriment. Some commenters noted that
Section and in section IIIA1 above.
contraceptives containing such inserts
privacy and confidentiality requirements
many individuals wrote in relating
which would. as a practical matter. have
surrounding counseling make it difficult.
personal experience of abuse of the
the effect of restricting the methods
if not impossible. to reflect the
counseling process. Numerous other
available under Title X to barrier
substance of counseling in auditable
individuals and groups argued that
methods. foams. and natural family
records in order to discern whether or
nondirective counseling is inappropriate
planning. Therefore. it was argued. such
not in fact clients. especially highly
in a program in which abortion is a
a restriction is contrary to the mandate
vuinerable and impressionable teens.
prohibited method of family planning
of Title X that projects offer a "broad
are being coerced into abortion
and in which it is clearly viewed as an
range" of family planning methods.
decisions. Other proponents argued that
undesirable alternative to childbirth.
Finally. it was argued that there is no
the regulations would protect women
Others argued that these counseling
legal authority for changing the current
from pregnancy counseling by
practices promote the use of abortion as
Title X guidelines. which require that
unqualified personnel since most Title X
a method of family planning by helping
counseling on abortion. prenatal care.
programs do not have the time to
a pregnant woman obtain an abortion.
adoption and foster care be provided to
provide the intense support required
They expressed the opinion that
pregnant women.
during the early stages of a problem
safeguards were needed to ensure that
These comments maintained that the
pregnancy. Proponents noted that
pregnant women are not pressured into
guidelines are clearly known by
decisions about families involve more
having abortions by Title X-funded
Congress. which has implicitly approved
than just medical counseling and that
projects. Others argued that Title X
of them in successive reauthorizations
given the potentially serious
projects should actively discourage
of the program and explicitly approved
consequences of abortion. women are
women from obtaining abortions by
them in language in the Conference
best served by providers outside the
providing full information describing the
Report on Departmental appropriation
Title X program who may counsel in
abortion procedure and its potential
for FY 1987. Pub. L 99-1005.
greater depth about pregnancy.
physical. emotional and psychological
Proponents. on the other hand.
5. Rational basis for regulations:
effects. as well as providing full
generally argued that the policies
Related to the above concerns was the
information on fetal development.
embodied in the present Title X
criticism articulated in many comments
6. Statutory authority: Hundreds of
guideiines contravene section 1008. and
that the proposed provisions are
comments questioned the statutory
that the proposed restrictions on
irrational or are simply not needed.
authority for the proposed prohibition of
counseiing are statutorily required or at
Some comments contended that the
abortion counseling. Numerous
a minimum would better effectuate the
theory advanced to justify the proposed
comments suggested that the provisions
section 1008 prohibition. As noted
prohibition of counseiing-that
would prevent informed consent and
above. they expressed the view that
counseling and referral "encourage or
are. therefore. inconsistent with the
abortion or options counseling results in
promote" abortion-is incorrect. In
requirement of sections 1001 and 1007 of
the promotion of abortion. and is
particular. many of these comments took
the Act that services be "voluntary." It
therefore inappropriate in a preventive
issue with the statement that the
was also argued that section 1008 itself
family planning program which its
provision of information on abortion is
defines abortion as a method of family
authors clearly intended to have no
pointless absent the expectation that
planning (albeit one for which funds
connection with abortion other than to
some of those informed will ac: upon the
under the title are not available) and
reduce the incidence thereof. The
Federal Register / Vol. 53. No. 21 Tuesday. February 2. 1988 / Rules and Regulations
2931
guidelines. it was argued. had converted
Representation. 401 U.S. 540 (1983). In
March :7. 1987). in which a Federal
Title X from a program in which
Regan the Court upheld as
district court concluded that restrictions
abortion was supposed to be prohibited
constitutional an
on 0 state-supported CHRIC counseling
into a program which in fact promotes
statute granting tax exemption for
and referring for aportion were
abortion as a method of family planning.
certain nonprofit organizations that do
unconstitutions) insolar as they applied
It was also noted that during the 1978
not engage in substantial luboying
to women who paid the full cost 01 their
reauthorization of the program. an
activities. It was argued that the Regan
treatment:
amendment to prohibit abortion
decision establishes the principle that a
Patients who fully pay for their services
counseling and referral was rejected as
governmental decision not to subsidize
would be denied access to medical
unnecessary given the prohibition of
the exercise of a fundamental right does
information which may affect their decision
section 1008. Further. the primary
not infringe upon the right and that the
whether to continue the pregnancy. perhaps
purpose of Title X as being a preventive
government may adopt classifications
enduring health risks. Here the State is not
family planning program was reiterated.
with respect to subsidizing the exercise
asked to subsidize abortions or the exercise
7. First Amendment A common
of First Amendment rights. so long as
of First Amendment rights. 562 F. Supp. at
427.
argument against the proposed
the classifications bear a.rational
provisions were that they constitute
relationship to a legitimate
These comments contended that this
unconstitutional viewpoint-based
governmental purpose. Since the
reasoning applies to Title X clinics. as a
discrimination. According to the
decision in Harris V. McRae. supra.
significant percentage of the clients
comments. under cases such as F.C.C. V.
establishes that the government may
served by Title X projects are full-pay.
League of Women Voters. 468 U.S. 364
choose to promote childbirth. the
Proponents of the regulations took the
(1984). Perry V. Sindermann. 408 U.S. 593
proposed policies are constitutional.
position that the proposed provisions on
(1972). and Speiser V. Randall. 357 U.S.
8. Unconstitutional interference with
counseling are constitutional. According
513. 518 (1958). the government may not
right to abortion. right to practice
to the proponents. the Supreme Court
interfere with the exercise of the right of
medicine: A number of comments
ruled in Herris V. McRce. supre. that the
free speech. The comments argued that
argued that the proposed provisions
government may constitutionally decide
this principle applies not only to direct
prohibiting counseling regarding
to subsidize childbirth over abortion.
interference. but also to indirect
abortion are unconstitutional in that
and the mere denial of government
interference. such as attaching
they impermissibly burden a woman's
subsidy for abortion does not constitute
unconstitutional conditions to a
right to obtain abortion and interfere
a consututionally impermissible
governmental benefit. penalizing
with the doctor-patient relationship
obstacle to the exercise of the right to
advocacy of a certain viewpoint. or
safeguarded by Roe V. Wade. supre. It
abortion. Thus. they argued. this
selectively granting benefits only to
was argued that the proposed provisions
necessarily means that the government
those advocating particular viewpoints.
are invalid on the same basis as the
may likewise subsidize speech and
The comments contended that the
Akron. Ohio ordinance struck down in
actions designed to further childbirth
proposed provisions contravene this
City of Akron Y. Akron Center for
and decline to subsidize speech and
principle by prohibiting Title X funds
Reproductive Health. Inc. 462 U.S. 416
actions that facilitate abortion. Such
from going to organizations that seek to
(1983). in that both limit the presentation
remedies are necessary to end the
provide all viewpoints about potential
of information to pregnant women
confusion which exists where clients.
options. including the abortion option.
relative to the abortion decision so as to
especially adoiescents. may see the
while permitting funding under Title X
discourage them from choosing abortion
interaction between federally funded
of organizations that have or express
Thus. under the rationale of City of
projects and abortion services.
solely the viewpoint that abortion is not
Akron. it was claimed that the proposed
Proponents wanted to sever the
an option in the management of
provisions both impermussibly interfere
"symbolic union" between the federal
pregnancy.
with the woman's right to make an
program and private programs which
A related argument was that the
informed choice and impermissibly
promote or provide abortions.
proposed provisions violate the First
intrude upon her physician's right to
B. Response
Amendment rights of Title X health care
provide medical advice and treatment. It
professionais to express their views and
was asserted. in connection with this
The Department recognizes the
the rights of their clients to obtain
line of reasoning. that the Supreme
problems created by the proposed
information from their doctors. Perry V.
Court's decision in Harris V. McRae
provision with respect to patient
Sindermann. supror Lamont V.
does not insulate counseling restrictions
package inserts for contraceptives and
Postmaster General. 381 U.S. 301. 308
from constitutional attack. as that
otherwise limiting the provision of
(1965) (Brennan. I- concurring). Citing
decision only relates to a governmental
information which is medically
Board of Education (Island Trees) V.
decision to subsidize the operation
necessary to understanding the relative
Pica 457 U.S. 853 (1982) and Griswold V.
itself. restrictions on counseling. by
risks of different methods of
Connecticut 381 U.S. 479 (1965). some
contrast were said to directly interfere
contraception in the course of selecting
comments took the position that the
with the freedom of choice protected
a method of family planning: it has
proposed provisions represent an
under Roe V. Wcde The decision in
therefore modified the requirements and
impermissible attempt by the
Planned Parenthood Ass'a) Chicago
examples accordingiy. See 42 CFR
government to "restrict the spectrum of
Area V. Kempiners. 531 F. Supp. 320. 325
59.8(a)(4) and 59.8(b)(6) below.
available knowledge" about family
(N.D. III 1981). vacated and remanded
However. it disagrees with the
planning and abortion.
on other grounds. 700 F.2d 115 (7 Cir.
remaining comments opposing the
Proponents of the proposed
19831. aff'o on rebearing 568 F. Sapp.
proposed restrictions on counseling and
restrictions generally argued that they
1490 (N.D. IL 1983) was cited in support
therefore the provisions otherwise
were fully constitutional and in no way
of this proposition. Many comments
remain substantaily as proposed. The
violated the First Amendment as
noted. in this regard. the recent decision
Department notes that many of the
interpreted by the Supreme Court's
in Reproductive Health Services V.
objections stated appear to be based on
decision in Regan V. Taxation Without
Webster. 662.F. Supp. 407 (W.D. Mo..
a misinterpretation of the scope and
2932
Federal Register / Vol. 53. No. 21 / Tuesday. February 2. 1988 / Rules and Regulations
application of the counseling restriction.
ethical imperative upon physicians to
inform the patient of the nature of the
It has accordingly clarified the
counsel or refer for abortion. as
surgical or medical procedure being
provisions. The explanation below
evidenced by the "conscience"
recommended. in most cases. the
likewise attempts to clarify the
exceptions cited by proponents of the
explanation should include the
provisions. and aiso se!s out the
provision. Opponents contend that the
necessity of the treatment
Department's reasons for rejecting the
proposed rules are contrary to the
(emphasis added) (Standards. P. 841.
remaining comments opposing the
findings of the President's Commission
This situation :S :- essence no different
provisions.
for the Study of Ethical Problems in
than the situation that currently exists in
1. Medical ethics: The Department
Medicine and Biomedical and
the Title X program with respect to
believes that much of the opposition to
Behavioral Research. However. the
services that are not offered by the
the proposed restriction on counseling
Commission also found that:
project. In the Department's view. this
proceeds from a misunderstanding as to
Patients are not entitled to insist that
issue is thus not a problem. and the
what is prohibited by the provision and
health care practioners furnish them
concerns expressed by providers
what is not It was not the intent of the
services when to do so would breach the
regarding violating State laws requiring
provision to restrict the-ability of health
bounds of acceptable practice or violate a
informed consent with respect to their
professionals to communicate to a
professional's own deeply held moral beliefs
treatment of pregnant women are
patient any information they discover in
or would draw on a limited resource to which
therefore mispiaced.
the course of physical examination or
the patient has no binding claim. (Making
A conceptually different issue is
otherwise about her medical condition.
Health Care Decisions. Voi. 1. p. 3.)
presented with respect to the issue of
Contrary to the assumption of most
Although abortion may be considered
informed consent to family planning
commenters. doctors would not be
to be within the bounds of acceptable
services. since in the context the Title X
precluded by the provision from
medical practice. it may potentially
project is the provider of treatment
informing a woman. pregnant or
conflict with the professional's deeply
services. However. as noted above. the
nonpregnant. that she has a turnor.
held moral beliefs. Moreover. since Title
Department has modified the rule to
AIDS. a diabetic or hypertensive
X resources are cleariy limited. the
make it clear that projects are not
condition. lupus. and so on. The
patient has no claim to the services
prohibited from providing the factual
provision thus does not preciude a
relating to the provisions of abortion.
information necessary to assess the
health professional from disclosing to
The Commission went on the say that:
risks and benefits of various methods of
the woman any physical findings he or
Similarly. a professional who has been
family planning which is provided by
she has made regarding her condition
flexible about possible avenues of treatment
means of the patient package inserts
and communicating his or her
as his/her standards allow is not generally
accompanying various forms of
assessment of the urgency of the need
obifgated to accede to the patient in a way
contraception. Thus. the projects remain
for treatment. consistent with the
that violates the bounds of acceptable
in substantially the same posture they
exercise of his or her professional
medical practice or the provider's own deeply
have aiways been in with respect to the
judgment. By the same token. however.
held moral beliefs. id. (VoL 1. p. 38.)
provision of information at this stage:
there would appear to be no ethical
Similarly. the American College of
they may provide the factual
imperative for a health professional at a
Obstetricians and Gynecologists support
information necessary to assess risks of
Title X clinic which will by definition.
the physician is right "[t]o refuse to
a particular contraceptive method as set
not be providing treatment services to
render treatment which is inconsistent
out in the patient package inserts. but
counsel a woman who displays a
with the Fellow's own moral code."
may not promote or encourage abortion
medical-condition unrelated to family
(Standards. p. 99.)
as a method of family planning. Indeed
planning as to the medical management
2. Informed consent: The Department
the Department notes and concurs in
of that condition Nor. it should be
disagrees with the numerous comments
Congressman Dingeil's floor statement
noted. is Title X money available for the
objecting to the proposed restriction on
of November 18. 1970. in which he
treatment of medical conditions
counseling for abortion as restricting a
stated. "the prevalence of abortion as a
unrelated to family planning. The same
pregnant woman's ability to give
substitute or backup method of family
considerations apply where pregnancy
informed consent. As a general matter. a
planning can reduce the effectiveness of
is diagnosed. See §§ 59.8(a)(2) and
requirement for informed consent only
family pianning programs." Cong. Rec..
59.8(a)(3) below. Rather. as has
arises where a course of treatment is
daily ed., P 37375 (Nov. 18. 1970). This
traditionally been the case in the Title X
proposed. See. Conterbury V. Spence.
clarification thus responds to the
program and as is required by 42 CFR
supra. Section 59.8(a) below makes clear
concerns raised regarding provision of
59.5(b)(1) and 59.8(a)(2) below. the
that where a woman is diagnosed as
complete information on the risks of
medically responsible course is to
pregnant the only appropriate action is
various forms of contraception. At the
ensure that the woman is referred to the
a referral for appropriate treatment
same time. it ensures that the project in
appropriate specialist for treatment of
(which. as noted above. would include
no way promotes abortion and that. at
the condition. with adequate followup
treatment for other conditions unrelated
the point at which abortion becomes
provided.
to pregnancy). Since the Title X project
more than a hypothetical issue
in the Department's view, the
is not providing treatment related to
(pregnancy), the project refers the
foregoing considerations address the
pregnancy (or. indeed. for other
woman for prenatal pregnancy care
ethical objections to the proposed
conditions unrelated to family planning).
rather than providing "options
provisions. The Department notes that if
it has no need to obtain consent to such
counseling." which could violate section
any requirement is established with
treatment. Rather. it becomes the
1008 by influencing her choice toward
regard to abortion counseling. it will
responsibility of the provider to whom
abortion.
conflict with someone's ethical beliefs.
the woman is referred to obtain
3. Liability and licensure risks: For
The approach of the proposed
appropriate consent to services: as the
the reasons stated in the preceding.
regulations. however. is more consistent
Standards of the American College of
sections. the Department is of the view
with section 1008. Moreover. it is
Obstetricians and Gynecologists state.
that the "parade of horribles" depicted
apparent that there is no absolute
"[i]t is the physician's responsibility to
in many of the comments with respect to
Federal Register / Voi. 53. No. 21 i Tuesday. February 2. 1988 / Rules and Requiations
2933
the risk of tort liability and loss of
infertility services. not to assisting
section :008. As indicated earlier. upon
licensure is invalid. In fact. physicians
pregnant clients to obtain an abortion.
reexamination of the statutory language.
are excepted from disclosing common.
Retional basis With
the Department is simply unable to
known or usual information or risks to
respect to the comments crimelzing the
conclude that the type c: counseling and
treatment. See. Bly V. Rhoads. 222 S.E.
theorencal basis for the restriction on
referral that has been required by the
2d 783 (Va. 1976). Abortion is clearly a
counseling. the Department thinks they
program guidelines has not had the
common and known procedure. and
are misplaced. Indeed. the comments
effect of promoting or encouraging
Title X is not the sole source of
concerning contraceptive counseling
abortion in violation of the statutory
information about it Indeed since Title
support the Department's point. as both
prohibition in section 1008.
X projects are aiready prohibited under
the purpose of and the demonstrated
In addition. the Department disagrees
the present regulations and guidelines
effect of contraceptive counseling is to
with the contention that the 1982 GAO
from taking any affirmative action to
promote the use of contraception. Some
Report does not substantiate the need
facilitate abortion. many of the "risks"
commenters attempted to apply the
for the provisions below. As noted
attributed to the asserted failure of the
Department's analysis on counseling to
above. GAO found that grantees were
provisions to make abortion available
a hypothetical example of preventing
engaging in questionable activities
have already been assumed Moreover.
teen suicides. The hypothetical example
relating to counseling and referral and
the Conterbury case cited by many of
in fact reveals the flaw in the critics'
ascribed this in major part to the lack of
the opponents does not presuade the
arguments. Given the state's interest in
concrete guidance from the Department.
Department that the rules below
protecting life. Congress might well
The comments from women whe have
significantly increase the risk of
establish programs to provide teenagers
received abortions quoted above
liability: the court in Conterbury held
or others with "directive" counseling on
embody the concern articulated by GAO
that liability will not lie unless a
suicide-that is. counseling that
and indicate that the policy of the
plaintiff can establish that a reasonable
encourages teenagers not to commit
present guidelines requiring Title X
person would have taken a different
suicide. However. if Congress enacted a
grantees to provide nondirective
course of action had full disclosure been
statutory grant program to provide
counseling on all options on request may
made. an extremely difficult burden
mental health services to reduce the
have been violated. Moreover. given
under the rules below. given the referral
incidence of mental illness. including
that the Title X projects do not provide
requirements. In addition. to the extent
suicide. and included a provision that
pregnancy services. it is unnecessary for
these regulations are inconsistent with
"none of the funds appropriated under
them to provide counseling with respect
the provisions of State law regarding
this title shall be used in programs
to such services. In light of these
counseling and informed consent. they
where suicide is a method of alleviating
concerns. the Department has concluded
may. in some circumstances. supersede
mental illness." the Department assumes
that the best way to safeguard Title X
State law under the Supremacy Clause
that no one would argue that such a
funds from being used to promote or
of the Constitution. See. for example.
statute permitted-much less required—
facilitate abortion as a method of family
Lesiie Miller. Inc. V. State of Arkansas.
that the provision of "nondirective"
planning is to prohibit counseling
352 U.S. 187 (1956); Planned Parenthood
counseling to the depressed adolescent
regarding abortion and ensure that
would include suicide as one of the
of Billings. Inc. V. The State of Montana.
pregnant clients are referred for prenatal
options followed by mere referral" to
648 F. Supp. 47 (D. Mont 1986). Thus.
services for the care of the pregnancy.
organizations such as the Hemlock
provider preceptions norwithstanding.
6. Statutory authority. After
Society for those who indicated that
the Department does not anticipate that
considering the comments relating to the
they wanted to choose the suicide
the regulations below will place Title X
provision of factual information relative
option If the Department is correct as to
to the choice of a birth control method.
providers at risk.
the interpretation that would be given
the Department has modified the
4. Impac: on Title X client population:
such a hypothetical statutory prohibition
regulation. See $ 59.8(a) (4). below. As
The Department recognizes that the
on suicide. it cannot see why the same
noted in the discussion at B1 above. it
regulations below may result in some
statutory language acquires a different
was never the Department's intention to
realignment of Title X providers. as
meaning when "abortion" is substituted
restrict the range of contraceptives
providers who disagree with the
for "suicide."
available from Title X projects. and the
regulations drop out of the program and
It may well be that. based on differing
modification of § 59.8(a) makes clear
other providers enter it. However. it
assessments of the relative morality of
this intent. Nor are the criticisms on
notes that most of the comments taking
abortion and suicide. some might find
informed consent grounds pertinent.
this position appeared to be concerned
nondirective options counseling
particularly in light of the changes
principally with what was perceived. to
concerning abortion morally acceptable
discussed above. As noted in the
be a prohibition on providing patient
while they would find nondirective
discussion at 0182 above. the issue of
package inserts for oral contracaptives
options counseiing concerning suicide
informed consent as it relates to
and IUDs. a policy which. as explained
unacceptable. Such a distinction.
pregnant women is beside the point.
both above and below. is not contained
however. would reflect their moral
because Title X does not provide
in the rules below. The Department is
choice. not their interpretation of
treatment for pregnancy. With respect to
thus unpersuaded that such a
statutory language-it certainly would
the provision of services to nonpregnant
realignment will occur. or if any
not be based on any belief that
women the policy remains unchanged
realignment in fact occurs. that it will
nondirective options counseling would
from that which has previously applied.
have a significant negative impact on
be any less likely to promote or
These changes eliminate any concern
the Title X client population. Indeed the
encourage abortion that it would be to
that regulations might be inconsistent
Department intends that the rules have
promote or encourage suicide.
with the statutory requirements relating
8 positive impact on the Title X
The Department's responsibility.
to the provision of services on a
population by helping to assure that
however. is not to make moral choices
voluntary basis.
scarce resources are allocated to
of this sort-it is to implement the
The Department dissagrees with the
preventive family planning and
choice that Congress made in enacting
contention that the provisions constitute
2934
Federal Register / Vol. 53. No. 21 / Tuesday. February 2. 1988 / Rules and Regulations
an additional and unlawful condition on
argument rests on the mistaken legal
amendment to Title X proposed by
eligibility for grants. Since. in the
premise that Congress failure to enac: a
Representative Dornan. 124 Cong. Rec.
Department's view. section 1008
statutory amendment affirmatively
37043 (1978).
authorizes the provisions. they by
relecting this policy constitutes a
The defeated smendment provided
definition do not impose conditions that
ratification of the policy In general. the
that: "No grant or contract authorized by
are inconsistent with the statute.
courts have been reluctant to permit
this Title may be made or entered into
The Department also disagrees with
such an inference to be drawn from the
with on entity which directly or
the comments criticizing the restrictions
legisiature's failure to act See. e.g.,
indirectly provides abortion. abortion
on counseling (as well as referral) as not
Motor Vehicle Manufacturers Ass in V.
counseling. or abornon referral
supported by the legislative history of
State Farm Automobile Insurance Co.,
services." Id. (emphasis added). As the
the 1970 Act With respect to the
463 U.S. 29 (1983). Indeed. even where
underscored language indicates. Rep.
reference to "information
Congress has acted affirmatively to the
Dornan's amendment would have done
activities" in the Conference Report.
extent of publishing a committee report
much more than reverse HHS' then
cited by many opponents of the
to subsequent legislation which
current policy of permitting abortion
provisions. it notes that the precise
interprets prior law, the Court has been
counseling and referral by Title X
reference is to information activities that
unwilling to accord it great weight. As
grantees in the Title X program: in
are "related" to among other things.
the Supreme Court observed in
addition to that it would have banned
"preventive family planning services."
Consumer Product Safety Comm in. V.
entities that provided abortion
Conf. Rep. Na 91-1667. 91st Cong- 2nd
GTE Syivania. Inc.. 447 U.S. 102. 118. n.
counseling and referral with non-Federal
Sess. 8-9 (1970). Counseiing concerning
13 (1980). "even when it would
funds in separate programs from
abortion is manifestly not related to
otherwise be useful. subsequent
participating in Title X. Indeed. in
preventive family planning services.
legislative history will rarely override a
initially introducing this amendment.
Furthermore. regarding Representative
reasonable interpretation of a statute
Rep. Dornan stressed the fact that it
Dingell's challenge to the Department's
that can be gleaned from its language
provided a ban on participation of
interpretation of his floor statements as
and legislative history prior to its
entities-such as Planned Parenthood-
made in 1970. that challenge appears to
enactment."
which provided the described abortion-
be based principally on the asserted
Moreover. the factual premise of this
related services. See Cong. Rec. 31241-2
failure of the proposed regulations to
argument-that Congress has adopted
(1989).
take account subsequent developments
the policy requiring abortion counseling
Subsequently. however. when Rep.
in the medico-legal environment. While
and referral-is wrong. Marry
Dornan again offered his amendment. he
the Department recognizes that there
commenters described the history of
did raise the issue of HHS' abortion
have been developments in both the
Title X as reflecting seventeen years of
counseling and referral policy. stating "it
medical and legai communities
consistent administrative policy which
has come to my attention there are at
regarding abortion that could lead
was well known and accepted by
least 117 hospitals and clinics receiving
legislators to change their minds as to
Congress. The facts. however. are quite
Title X family planning money where
what restrictions are appropriate an
different. Initially. it should be noted
abortion is a method of family planning
federally funded programs. it disagrees
that the Department's policy ON abortion
Id. at 37046. A colloquy then
with Representative Dingell as to what
counseling and referral developed in an
ensued in which Rep. Rogers-who was
legal conclusions flow from those
evolutionary manner during the 1970s.
the sponsor of the reauthorization of
developments. Section 1008 remains in
Only in 1981 was that policy
Title X-vehemently rejected the
force precisely as enacted in 1970 If
incorporated and indeed expanded in
statement that Title X clinics were
Congress believed that subsequent
guidelines. The available evidence
providing abortion counseling and
developments have rendered its
regarding Congress' knowledge and
referral.
restrictions obsolete. it could have
reaction to those policies does not
amended it it has not done SOL
Abortion is not a method of family
reflect full knowledge and acceptance of
planning. Abortion comes after pregnancy-
Moreover. the Department does not
them. Rather. in the Department's view.
after pregnancy. And the gentlemen misses
agree that congressional actions
the available evidence indicates-in the
the point of what we are doing in Title X It is
subsequent to 1970 constitute a form of
earlier years-considerable
before-before. It is to let people know how
legislative ratification of its policy of
congressional confusion as to what the
to avoid pregnancy. We cannot use any funds
requiring abortion counseling and
Department's administrative policies
for abortion. The amendment is not needed. I
referral by Title X grantees such that it
were. and. thereafter. as those policies
urge its dafent. Id
is now required by law to maintain that
became more well known. considerable
When Rep. Dornan again referred to the
policy in force Although Congress has
political controversy as to their
117 Title X clinics that he was informed
enacted several unrelated amendments
correctness both as a matter of law and
were providing abortion counseiing and
to the family planning provisions of Title
as a matter of social policy.
referral. Rep. Rogers again denied the
X and has authorized funding six times.
The Department does not believe it is
truth of this statement suggesting.
the relevant provisions of Title X have
appropriate to provide a comprehensive
among other things. that "you may have
remained unchanged since 1970 Thus.
analysis of the legislative history of Title
a hospital that may be running a family
the commenters' agruments that the
X subsequent to 1970 in this preamble.
planning section in one wing and maybe
Department is now required as a matter
However. by way of illustration. the
they do an abortion in that hospital to
of law to maintain its policy of requiring
Department does think it would be
save the life of the mother." Id.
abortion counseling and referral appears
useful to focus on one event that was
Thus. what occurred in 1978 was: (1)
to rest largely on inferences drawn from
probably given the most emphasis by
The House defeated an amendment that
Congress' failure to enact a statutory
the commenters who argued that the
would have done something far different
amendment affirmatively rejecting that
subsequent legislative events preclude
and far more sweeping than the
policy.
the promulgation of these regulations—
prohibition on abortion counseling and
Aside from the factual errors of this
the 1978 defeat. by a 232-137 vote in the
referral contained in the regulations
argument. discussed below, this
House of Representatives of an
being promulgated today. and (2) did so
Federal Register / Voi. 53. No. 21 / Tuesdav. February 2. 1983 i Rules and Regulations
2935
after having been emphancally
There is no question. of course. that
organizations that engage in lobbying.
misinformed by the spensor of the
Congress has now become acutely
The Court upheld the tax statute
reauthorization legislation that the
aware of Title X. The treatment o:
because nonprofit organizations had
amendment was unnecessary." The
abortion in connection with Title X has
available an alternative avenue for
Department does not believe that this
become 3 matter of sharp political
conducting lobbying activities through
episode can be construed as evidence of
controversy in recent years. Some
formation of affilate organizations under
an adoption by the House of
members of Congress believe that the
a separate section of the code. The rules
Representatives (much less Congress as
policies set out in the current guidelines
below clearly meet the tests of these
a whole) of the Department's policy at
are correct as a matter of statutory
cases. Indeed. as discussed both above
that time. Indeed. what it appears to
interpretation and administrative policy:
and in the following sections. the rules
reflect is congressional confusion as to
other members of Congress believe that
below do not go as far as the statutes at
what was occurring in the Title X
the current Department guidelines are
issue in those cases. as they do not
program. At the very least. it simply
incorrect as a matter of law and policy.
require the formation of a separate
provides support for the view that an
Unless and until Congress enacts new
organization to conduct various abortion
administrative agency or a court should
legislation. however. Title X remains in
activities: they merely restrict what an
look to legisiation enacted by Congress
effect as law. and the Department's
organization may do. with Title X
to determine what Congress' intent is.
obligation is to interpret existing law
project funds. within the confines of its
and not try to draw inferences about
and-based on its experience in
Title X project activities.
that intent from other sources.
administering the program-to exercise
With respect to the claim of many
Congress. of course. recently did enact
its delegated administrative authority by
comments that the counseling
in the Continuing Resolution for fiscal
adopting the policies that best effectuate
restrictions of the proposed rules would
year 1987 legislation arguably bearing
the statute.
violate the First Amendment rights of
on the Title X guidelines. Specifically. a
7. First Amendment: The Department
health care professionais and their
Conference Report to an unenacted HHS
disagrees with the comments
patients. the Department disagrees that
appropriations bill was incorporated by
challenging the proposed limitations on
the cases cited in support of this claim
reference into the continuing resolution
counseling on First Amendment
bear on the case at hand. The proposed
for fiscal year 1987 (Pub. L No. 99-164.
grounds. To begin with. it should be
rules. and the final rules below. do not
section 101(b)(4)(e). 100 Stat. 1187
noted that Congress has broad authority
establish universally applicable penal
(1986)). Some commenters asserted that
to determine the purpose. terms. and
provisions which interfere with an
the "incorporated" Conference Report
conditions under which grants are made.
individual's right to free speech. as was
contains a restriction on administrative
Buckley V. Valeo. 424 U.S. 1. 90-91
the case in Griswoid. supra. They place
change in the Title x guidelines during
(1976). In particular. Congress. under the
no restrictions on the dissemination of
fiscal year 1987. The Department
McRae case. supra. and under Maher V.
information by health professionais
disagrees with that interpretation of the
Roe. 432 U.S. 464 (1977). may make a
about abortion. except in the context of
Conference Report.
choice favoring childbirth over abortion
the federally funded project. This
Even assuming. however. that the
and may impiement that choice through
distinguishes the instant rules from the
Continuing Resolution. in effect.
the allocation of public funds. The fact
Illinois law declared unconstitutional in
"codified" the current Title X guidelines
that speech in the form of counseling is
Kempiners. supra. which created a total
for fiscal year 1987 by forbidding the
involved in a program such as Title X
ban on funding to organizations that did
Department from changing them during
does not disable Congress from making
abortion counseling or referral. Nor is
that period (i.e.. until October 1. 1987).
that choice. Thus. no issue of viewpoint
this a case like those involved in
the Department does not believe that
discrimination is posed here such as
Sherbert V. Verner. 374 U.S. 398 (1963)
that fact would lead to the conclusion
might be presented were the government
and Speiser V. Randail. supra. in which
advanced by several commenters
to fund a widespread public relations
a governmental benefit that is available
opposed to the proposai-that the
campaign taking one view.
to all other similarly situated persons is
legislation represents a definite
The League of Women Voters case.
denied solely because of the exercise of
manifestation of congressional intent to
which was frequently cited by critics of
their First Amendment rights. Title x
permanently adopt HHS' current Title X
the proposed rules. does not change this
confers no entitlement to benefits upon
abortion counseling and referral
analysis. In League of Women Voters.
individual organizations: it is a
the Supreme Court found
discretionary grant program. Moreover.
guidelines. Indeed. it seems to the
unconstitutional a statute that
the fact that an organization's grant
Department that such an interpretation
application does not include abortion
would contravene the asserted meaning
prohibited editorializing by any
of the legisiation by converting what
broadcast station that received Federal
activities will not automatically entitle it
was purportedly intended as temporary.
funds. The Court expressed concern that
to receipt of grant funds. In any event.
one-year delay in amendment of the
all editorializing was prohibited. even
as noted by Judge Cudahy in his
that financed by private funds: it. stated.
concurring opinion in the remand by the
guideiines into a permanent
incorporation of them into the statute. In
however. that if a statute allowed a
Court of Appeals for the Seventh Circuit
this connection. the Department notes
station to establish an affiliate which
in Kempiners. the Constitution does not
could editorialize with nonfederal funds.
require "equal time" on the payment of
that language analogous to the language
it would satisfy constitutional scrutiny.
public funds to subsidize a point of
of the 1987 Continuing Resoluation was
468 U.S. at 400. n. 27. The result reached
view. 700 F. 2d 1115. at 1128.
dropped in the 1988 Continuing
Resolution.
by the Court in the Regan case. cited by
8. Unconstitutional interference with
many supporters of the proposed rules.
right to abortion. right to practice
confirms this position. In Regan. the
medicine: The Department disagrees
0 That Rep. Rogers was so mistaken as to the
court upheld the constitutionality of a
with the contention of numerous critics
Department's interpretation of section 1008 strongly
suggests that this interpretation was not widely
section of the tax code prohibiting
of the proposed rules that the proposed
known in Congress--et least in 1978-as some
taxpayers from deducting as charitable
restrictions on counseling (as well as the
commenters have claimed.
contributions gifts to nonprofit
other restrictions of proposed § 59.8 and
2936
Federal Register / Vol. 53. No. 21 / Tuesday. February 2. 1988 / Rules and Regulations
s 59.10) impermissibly burden a
health care providers and/or facilities which
prenatal care. thereby building in a
woman S right to obtain an abortion. as
provide abortions.
possibly critical delay in the treatment
well as a physician's nght to practice. It
The example provided in proposed
of a cancerous condition. The same
notes. as an initial matter. that there :s
$ 59.8(b)(2) to illustrate this requirement
argument was made by various
no significant difference in
concerned the case of a pregnant
commenters with respect to a range of
constitutional principle between a
physician's right to practice and a
woman whom the project diagnoses as
other conditions. such as cervical
having an ectopic pregnancy: :: was
cancer. breas: cancer. AIDS. minor
patient's right to his services. See.
stated that she should be immediately
gynecological problems. and so on.
Harris V. MaRce. 448 U.S. at 318. = 21:
provided with a list of appropriate
According to the providers. such a
Whalen V. Roe. 429 U.S. 589. 605. n 33
(1977). The regulations below are not
hospitals and physicians. and that such
disparity in the standard of care is
like the statutes struck down in Coloutti
a referral would be permissible under
medically indefensible and would create
the statute.
major liability risks for them. In
V. Franklin. 439 U.S. 379 (1979). Planned
addition. several comments argued that
Parenthood of Central Missouri Y.
A. Comments
such a policy is inconsistent with the
Danforth 428 U.S. 52 {1976}. and City of
Akron. supra. In each of these cases. the
As with the provisions on counseling
legislative history of the 1970 act which
the proposed provisions relating to
indicates that Title X projects were
law at issue imposed mandatory
referral were the subject of numerous
intended to be providers of
disclosure and informational
comments. Opponents criticized the
comprehensive health care and not
requirements upon physicians
provisions on the ground that a
simply dispensers of contraceptives.
counseling in the abortion context.
prohibition on referral for abortion
The proposed change in policy
requirements that were enforced through
criminal and administrative sanctions.
would prevent projects from insuring
regarding referral for abortion itself was
that women confronted with life-
Even the Illinois statute at issue in
also attacked as constituting unsound
Kempiners. supro. was considered by
threatening conditions received proper
public health policy. It was argued that
Judge Cudaby not to impermissibly
emergency treatment. that it violated
the requirement that women desiring
medical ethics. that it would slow
burden a woman's right to an abortion.
abortions be given a list of providers of
as she remained free. under that statute.
access to abortions and to prenatal care.
prenatal care and delivery services
to seek the services of organizations not
that it was vague and unclear. and that
would build in a delay in obtaining
funded by government funds or to seek
it was illegal. Proponents. OR the other
services. It was asserted that this would
counseling from friends. family. and so
hand. argued that the provisions would
result in an increase in later. riskier
on. Kempiners. 700 F2d at 1127.
correct the ethical problems presented
abortions. an increase in prenatal
Similariy. the statutes that were struck
by the 1981 guidelines and bring them
complications and infant mortality due
down in Reproductive Health Services
into conformity with section 1008.
to the delay in prenatal care. and an
V. Webster. supra prohibited not only
1. Emergency referrais: Opponents of
increase in women (particularly
the use of any public funds for abortions
the proposed provisions uniformly
teenagers) being effectively deprived of
and abortion counseling but also the
objected to these proposed policies. A
the choice to elect abortions because of
performance of such activities by any
major objection. based in large part OIL
the time limits. on availability and their
public employees or in any public
the ectopic pregnancy example. was that
own comparative inability to negotiate
facilities. 662 F. Supp. at 424. The ruies
the provision was far too broad.
the health care system. A few providers
below are far less broad. The rules
Numerous providers contended that as
suggested that the provision would have
below. in fact. do not prevent a health
drafted. the provision would place them
the counterproductive result of wasting
professional or a provider organization
in the untenable position of not being
valuable time for those few Title X
from discussing. promoting. or otherwise
able to provide appropriate treatment or
clients who need genetic counseiing and
encouraging a woman to have an
referrais for life-threatening conditions.
for whom in utero treatment of the fetus
abortion as a general matter. they
It was repeatedly stated that the
is a possibility.
simply do not permit them to do so
medically appropriate response. where
Proponents of the proposed
within a Title X project As such they
an ectopic pregnancy or other life-
provisions. on the other hand. thought
do-not suffer from the constitutional
threatening condition is disgnosed. is to
they were needed. They stated that
infirmities of the laws at issue in the
make immediate arrangements for
under the 1981 guidelines. a Title X
cases relied upon by the opponents of
appropriate emergency treatment. These
grantee must make abortion referrals.
the proposed rules.
comments stated that simply providing a
which they contended fosters a policy of
list of referrals would be improper. as
encouraging abortion since. under the
TV. Referral.
well as subject the provider to various
guidelines. projects must identify
Section 59.8(a) of the proposed rules
tort actions.
providers of acceptable quality. ensure
provided. among other things, that a
2. Referrals for prenatal care: A
that the services are obtained by the
project which-
related and very Common criticism of
client and in some instances. aid the
provides referral for abortion services
the proposed provision was that it
client in identifying potential resources
as a method of family planning is not eligible
would subject pregnant women to a
for reimbursement. Such activities. it
to receive funds under this subpart
standard of care inferior to that
was argued entangie the program with
Where appropriate. medical or social service
available to nonpregnant women. The
abortion and therefore require projects
referrals for non-Title X supported services
example typically cited was of the
to indirectiy support what the Federal
shall be made by providing a fail list of
woman who is diagnosed as having a
government cannot directly support.
available health care providers of
breast lump: it was asserted that if she
Some maintained that the requirement
appropriate prenatal medical care and
delivery services from which a family
is not pregnant. she can be referred to
to refer for abortion has resulted in the
planning client may select. Such referrals
an oncologist for examination and
impiementation of a pro-abortion
may not however. be used as an indirect
treatment if it proves to be manignant on
program. because groups which refuse
means to encourage or promote abortion in
the other hand. it was asserted that if
to refer for abortion are excluded.
violation of section 1008. such as consciously
she is pregnant. under the proposed
thereby causing an overall bias toward
weighting the list of referrals in favor of
provision she could only be referred for
abortion.
Federal Register / Vol. 53. No. 21 / Tuesday: February 2. 1988 / Rules and Regulations
2937
Proponents also argued that the
care until the woman has lined up
receives the services needed quickly.
proposed provisions do not threaten the
another provider who will accept her for
See 30.3 (a)(2) below.
ethical responsibilities of family
prenatal care: :0 fail to do so would
2. Referral for crencial care: !-
planning providers :0 render high
constitute the tort of "abandonment"
addition. the provisions below have
quality care to their clients. They
4. Legai authority: The proposed
been modified in make clear a point that
mamiained that claims that health care
provisions relating to referral were also
was apparently misunderstood by many
providers have an ethical obligation to
opposed as illegal. Opponents of the
commenters. Le.. that Title X providers
counsel clients on abortion and to
provision suggested that: is
are no: preciuded from making-and
arrange abortions is a novel
inconsistent with the decision of the
indeed are obligated to maxe-
interpretation of the canons of medical
U.S. Court of Appeais for the Eighth
appropriate referrals with respect to
ethics. as evidenced by the fac: that the
Circuit = Valley Family Planning V.
treatment of conditions that are
House of Delegates of the AMA has.
State of North Dokota. 561 F. =8 99 (8
diagnosed in the course of examining
consistently affirmed the right of
Cir. 1961). asserting that that decision
pregnant Title X clients. Thus. in
physicians to abstain from any
relied an and upheid an errifer.
general. clients with medical conditions
involvement in abortion In support of
Departmental opinion construing 42 CFR
requiring trearment-whether pregnant
the argument that there is no legal or
59.5(b)(1) as requiring, and section 1008
or not-must be referred under the rules
ethical requirement to reier for abortion
of the stature as not precluding. referral
below to an appropriate provider of the
proponents pointed to various
for abortion where "medically
needed medical care. If the condition is
"conscience clauses" established by
indicated." Opponents also argued that
one that is related to pregnancy. the
various state and Federal standes.
the proposed provisions are
requirements of $ 59.8(a) apply: if the
which generally provide that physicians
unconstitutional. both as a restriction on
condition is one that is not related to
and other medical personnel may not be
the free speech of providers and as
pregnancy. $ 59.5(b)(1) continues to
required to provide. counsel or refer for
placing another obstacle in the path of a
apply- See. in this regard. the discussion
abortion if contrary to the individual's
woman's exercise of her right to
at sections IBI and ШВ1 above.
moral beliefs It was pourted out that if
abortion.
These changes and ciarifications of
there were an absolute ethical dury to
Proponents of the proposed
the proposed policies thus respond to
refer for abortions. thousands of
provisions. on the other band argued
most of the comments on the referral
physicians would be unable to practice
that they are legal It was argued that
issue. As for the comments arguing that
ethically. as they refuse to refer for
the restrictions regarding referral are
the policy builds an unaccaptable delay
abortion: the fac: that such physicians
essential 9 ensure that the statutory
into the process of obtaining both
can practice was cited as evidencing the
purpose that abortion not be promoted
prenetal care and abortion. where
lack of are ethical imperative to reier for
with Title X funds be met and the GAO.
chosen. the Department does not agree
abortion.
findings were cited as evidence of abuse
that substantial delays will result under
3. "Conscious weighting Numerous
of the referral process. In this regard.
the mies below. It has addressed the
comments also questioned the scope
several took the position that Valley
issue of delay = prematal care by
and advisability of the provision
Family Planning world be irreievant
requiring that projects provide
prohibiting "conscious weighting" of the
under the proposed regulatory scheme.
information designed to protect
referral list Both proponents and
since that decision simply relied on are
maternal and fetal health until 3
opponents of the proposed ruies
opinion construing the prior
provider a. prenatal care is secured for
questioned whether they would permit
requirements. They also meintained that
the chient. This will permit information
or require a facility to provide & referral
the arguments supporting the
regarding good health practices during
list that entirely omitted any adortion
constitutionality OF the counseling
pregnancy (e.g. warning the pregnant
providers. In this regard. a number of
provisions likewise support the
woman shout the risks of substance
providers. particularly from rurai areas.
constitutionality of the referral
abuse. counseling regarding proper
asked whether the provision would
provisions.
nutrition. rest. and so on) to be provided
preclude inclusion on the list of facilities
B. Response
by the project.
such as hospitals which perform
However, the Department rejects the
abortions: it was pointed one that in
The Department agrees with and has
contention of many comments that the
many areas of the country (Michigen
accepted several of the points raised by
policies below will expose poor and
and Tennessee were cited as examples).
the comments on this issue. 13 reflected
young women to substantially greater
hospitals are often the main or only
in the revised provisions appearing at
risk OF delay irr obtaining services
source of prenatal care for indigent
$ 50.8 (a)(2) and (3) and 1 59.8(b)(2)
related to pregnancy outcome. This
women. SO that if the provision requires
below.
contention is based on the assumption
excluding them. such women would be
1. Emergency referrals: The ectopic
of delay or elient loss IT the referral
left without a source of prenatal care.
pregnancy example has been amended
process. However. such a risk has
Questions were also raised as to
to provide for immediate provision of
always existed in the Title X program.
whether the list couid be specifically
appropriate referral for emergency
as it has never provided any pregnancy
tailored to indicates providers'
treatment. to make clear that Title X
outcome services. whether abortion
specialties (such as generic screening
providers are in fact obligated a
services or delivery services. All that
and counseling. experience in handling
provide referrais for immediate and
the referral requirements below do is
certain types of high-risis pregnancies)
appropriate medical care when
move what has always been. where
or their willingness to accept low-
confronted with a life-direatening
pregnancy is diagnosed. an inevitable
income clients and clients on weifare, so
medical consition. See $ 59:8fb)(2)
referral sligintly aread in time.
as to reduce the delay in
below. Irr any cases in which emergency
Moreover. there is TO σ priori reason
services. With respect to indigent
referrais are needed. the Title X project
why a properiy operating referral
women a number ai providers argued
must expedite the referral and take
process cannot operate just as
that the only medically responsible
whatever steds are necessary and
efficiently if it refers at the time
course is to provide prefimmary prenatal
appropriate to insure that the client
pregnancy is diagnosed as it can if it
2938
Federal Register / Vol. 53. No. 21 / Tuesday. February 2. 1988 / Rules and Regulations
first provides options counseling and
"conscious weighting" of the referral
that :: was required under the
then refers.
lists. the Department thinks that most of
regulations when medically necessary.
Because Title X projects do not offer
the provider concerns are misplaced. As
such as when the life of the mother is
the complete continuum of care from
proposed. the prohibition was very
endangered.
pregnancy diagnosis to childbirth. there
narrow: It preciuded only conscious
Nor does the Department agree that
may have been and may continue to be
weighting of the list in favor of abortion
the referral provisions of the rules below
some unavoidable delays in individual
providers. As such. it was silent with
are constitutionally infirm. With regard
cases. The only certain way to eliminate
respect to other characteristics of the
to the First Amendment problems which
any gap in time would be to award Title
list such as breakdown by area of
many comments asserted ex:st. there is
X funds only to organizations which
specialty. acceptance of Medicaid and
analytically no difference in First
provide the entire spectrum of obstetric
other relevant variables and such
Amendment terms between the
and gynecological services including
breakdowns were therefore not
restrictions on counseiing and the
delivery services.
precluded. Indeed. section 59.8(a)(2)
restrictions on referral. Thus. the points
With respect to an abortion.
requires referral to "available"
made at IIIB7 above apply to these
moreover. these comments evidence a
providers of prenatal care. including
claims as well. As to the claim that
substantial misunderstanding of (and to
providers appropriate to the Title X
prohibiting projects from making
the extent they come from Title X
clientele. who are primarily low income.
referrals for abortion constitutes an
providers. probabie noncompliance
Nor does the Department view the
unconstitutional interference with the
with) the Title X requirements. Contrary
"conscious weighting" provision as
woman's right to obtain and the doctor's
to the claims of many providers. Title X
prohibiting the inclusion of facilities.
right to refer for abortion. the points
has never permitted more than, "mere
such as hospitals. in which abortions are
made at IIIB8 apply to this claim also.
referral." that is. the provision of the
performed if they are also major
name and telephone number of a
providers of prenaral care and other
V. Program Integrity
provider for abortion: the extensive
services and the referral is specifically
facilitation of abortion (such as setting
Section 59.9(a) of the proposed rules
made to the providers of prenatal care
up appointments. making transportation
services. Rather. what is prohibited is
provided that a Title X project must-
arrangements. making arrangements for
inclusion on the list of providers that. as
be kept entirely separate and distinct.
payment of the abortion) that so many
their main function. provide abortions
financially and physically. from any abortion-
of these comments assume to be
and the deliberate exclusion in the
related activities. This requirement includes
common practice have never been
composition of the list of providers that
maintaining separate financial. accounting
permissible in the Title X program.
personnel and medical record systems and
do not provide abortions or referrals for
separately maintaining other project
While the rules below no longer permit
abortion. However. to make clear that
functions and physical facilities (including
"mere" referral for abortion. this is
the requirement relates solely to the
office space. equipment stationary and the
consistent with the statute which clearly
actual composition of the list and does
like) in such a manner as to clearly separate
intended that abortion not be facilitated
not relate to the project's intent. it has
Title X-funded activities from abortion-
through the Title X program. Those who
deleted the word "conscious" from
related activities. This requirement prohibits.
seek abortions must do so outside of the
$ 59.8(a) below. In addition. the
by way of example. common waiting.
program. The Title X program has never
Department has added language to
consultation. examination and treatment
been invoived in ensuring rapid and
make clear that the project may not
areas: shared telephone numbers and
easy access to abortion services so that
direct clients to prenatal providers on
receptionists. common names for eligible and
a later term abortion could be avoided.
ineligible programs: and common office
the referral list who also perform
entrances and exists. Although common
Some delay in an individual decision
abortions.
street or mailing addresses will
choosing abortion is not unusual in
4. Legal authority: The Department
presumptively constitute a failure to separate
medical practice. nor is it in all cases
also rejects the contention that the
adequately Title X-funded programs from
inadvisable. ACOG. for example.
referral requirements are illegal. As
other programs which include abortion as a
recommends that a woman "should be
regards the Vailey Family Planning
method of family pianning. grant applicants
allowed sufficient time for reflection
decision. it notes that the Court of
may seek to establish the reasonabieness of
prior to making an informed decision."
Appeals for the Eighth Circuit did not
such arrangemnts in exceptional cases
(Standards. p. 63.)
purport to limit the Secretary's authority
where. as in the example of a large
For the reasons above. the
to prescribe standards implementing
metropolitan hospital with abortion and
Department does not believe that access
family planning services located in different
section 1008: rather. pursuant to the
to abortions will be affected as a result
wings. the fact of physical separation is
Supremacy Clause of the Constitution. it
otherwise established and no use of
of the change in policy. Nevertheiess. it
simply applied the regulatory standards
appropriated funds in an ineligible program is
should be clear that given the
then in effect to supersede contrary
likely.
prohibition of section 1008. the
State law. Moreover. the basic premise
Department cannotnow nor ever has
of that regulatory standard-that
Proposed § 59.9(b) set out four examples
been able to facilitate the selection or
referrals where a life-threatening
of fact patterns which failed to comply
obtaining of abortion as a method of
condition is diagnosed are not
with the proposed requirements and one
family planning. Therefore. to the extent
prohibited by section 1008 and are
example of a fact pattern that complied.
abortions are not selected as a
regulatorily required whether or not the
A. Comments
consequence of this policy. it believes
treatment ultimately is abortion-is
such a result is consonant with the
unaffected by the rules below. as the
1. Cost: The most common objection
congressional purpose underlying
discussion at the first paragraph of this
to the proposed co-siting restrictions
section 1008. which clearly disfavors the
section makes clear. The Department
was COSL Many comments. particularly
choice of abortion as a method of family
interpretation upon which Vailey
those from State and local governmental
pianning.
Family Planning was partially based did
organizations. argued that the proposed
3. "Conscious weighting": With
not state that referral is required on
restrictions would require a substantial
respect to the comments questioning the
demand. neither did it find that referral
investment in duplicate facilities.
meaning of the prohibition on
is always required: rather. it held only
personnel and 90 on. which would
Federal Register / VoL 53. No. = / Tuesday. February 2. 1988 / Rules and Regulations
2939
render Title X funds meconomic to
providers and provider organizations
other federally funded programs in
accept The paracular concern in this
submitted estimates of the cost of
which abortion information may be
regard was typically stated to be the
complying with this provision. which
provided.
phrase "abortion-related services." The
ranged #P to S130 million for the
3. Separation of medical. personnel
comments typically criticized this
program as a whole. Based on such cost
and financial systems. A related
phrase as extremely vague. but assumed
estimates. a number of comments
criticism was frequently expressed with
that the phrase covered any services in
argued that the Department did not
regard to the proposed requirement to
which adortion is mentioned. such as
comply with Executive Order 12291 in
establish separate "medical records
genetic screening and counseling or the
that it did not conduct a regulatory
systems." Many providers and provider
provision of handouts mentioning
impact analysis of the proposed
organizations argued that the
abortion. and not just the actual
requirements. and maintained that the
requirement would be impractical for
performance at abortions. One State
proposed requirements exceeded the
multifunction health care facilities. such
health department questioned whether
impact threshold of the Executive Order.
as hospitals or county health
the term "abortion-related services"
It was argued. moreover. that it is
departments. which maintain
covered such services as laundry,
inappropriate as a matter of public
centralized medical records systems.
housekeeping. security. and data
policy to require Title X funds to be
They also maintained that such a
processing services that are shared by
spent on such items as paving parking
requirement would interfere with
the abortion component of. for example.
lots. which some assumed the proposed
community of care by fragmenting a
a large metropolitan hospital.
provisions to require. and constructing
patient's medical records. They stated
A number of public organisations
new doorways and lobbies rather than
that this could !ead to poor medical
stated that the practical effect of the
on the provision of direct health care
management of the patient's care by the
requirements would be to bar them from
services.
project or eisewhere in the organization
participating in the Title X program.
2 Continuity of carer The co-siting
if complete records are not obtained.
They contended that they do not have
requirements were also criticized an
The proposed requirement was thus
the financial ability to establish
public health grounds. principally on the
generally inticized 25 inconsistent with
duplicate clinical facilities. provide
basis that they wauld impact negatively
proper medical procedure.
separate parking lots (as appeared to be
on comunuity of care berween family
The requirement for separate
required in the example at proposed
planning and abereon. Numerous
personnel systems was attacked GHT
$ 59.9(b)(1). or even establish separate
comments. particularly from public
simlar grounds. Public organizations
entrances and exits. Moreover. many
providers. argued that the trend in
generally argued that they could not
stated that they are required by law to.
public bealth has been to locate related
comply with the proposed requirement.
provide services through existing public
services together. to facilitate fail
given the legal structure of most
bospitals and climics, in which they also
utilization by clients of needed services.
governmental personnel systems in
conduct a variety of activities in which
Forthis reason. it was stated. even in
which employees of many governmental
abortion is mentioned. abortion
"large. metropolitan bospitals." abortion
agencies are employed under the same
counseling is done. or abortions are
courseling services are frequently
personnel system. Other provisions.
provided. frequently because or court
located in the same corridor or wing as
criticizing the example at proposed
orders mandating such activity. Several
family planning services. Such
$ 59.9(b)(2). argued that it was improper
public organizations argued that the
arrangements aiso decrease the rate of
to regulate what a physician or other
only organizations that would be able to
repeat abortions. it was argued. by
health professional. who may be
remain in the program under the
making contraceptive counseling and
employed by the project on a part-time
proposed requirements are the single OF
services readily available to women
basis. does with the rest of his time.
dual-purpose private organizations. such
who have had or are about to have
The proposed requirement for
as Planned Parenthood affiliates. which
abortions. As a practical matter.
separate accounting systems elicited
would have the financial capability and
therefore. it was asserted that it will
similar criticisms. A number of
legal flexibility to establish separate
often not be possible B relocate Title X
comments recognized that it is
facilities. The requirements were seen
services and in any event. doing 8
reasonable. and consistent with
as impacting partieniarly severely on
would not be consistent with
customary and lengstanding Department
rural areas. where existing resources are
contemporary public health thinking. It
practice. to require Title X grantees to
scaree and where distance is a major
was also argued that the proposed
maintain separate accounting records.
barrier to service. Because of such
requirements, if complied with would
However. it was repeatedly stated that
considerations. it was argued. the
have at least a abort-term impact on
requiring separate accounting systems is
empirasis has been on establishing
continuity ai care. occasioned by the
infeasible for most large organizations,
multi-purpose sites of rural health care.
change attendant ON moving to new
perticularly governmental ones. For
with which the requirements would be
facilities. hiring new personnel. and so
example. the state health department of
at odds.
on. A public agency in New York for
New Jersey endorsed the
Private providers likewise criticized
instance. indicated that family planning
reasonabieness of requiring physical
the proposed provisions as too costly. A
providers in that state would have to
and financial separation of abortion and
number argued that the net effect of
seeic approval under New York's
family planning services in a hospital
separating their Title X operations from
certificate of need law to establish
but argued that the common practice of
any abortion-related activities they
deplicative services. which could
having distinct "cost centers" in
conduct would be any increase in cost for
temporarily inpair the ability of the
hospitals should be sufficient to meet
both operations. These comments took
Title X projects to provide services or
the requirement for financial separation.
the position that a cross-subsidy
close them down permanently. if the
These comments thus urged that both
existed. with Title X benefitting from
certificate of need were not obtained.
the policy and the example at proposed
economies of scale due to balk
Several commenters expressed concern
$ 59.9(b)(4) be changed.
parchasing of supplies. sharing or
that the requirement of proposed § 59.9
4. Treatment of large. metropolitan
overtead casts. and so OR. A few
would interfere with the activities of
hospitals. The proposed provision which
2940
Federal
Register
/
Vol.
53.
No.
21
/
Tuesday.
February
2.
1988
Rules
and
Requiations
used the example of "a large.
an "entirely separate facility" to
statutory mandate has not been met.
metropoiitan hospital" was critized on
exercise its First Amendment rights.
Thus. the rule below provides that.
several grounds. A number of comments
even though it could decline to subsidize
while accounting separation is
argued that it was vague. Other
the exercise of those rights with Federal
necessary. it is not sufficient. There
comments argued that it was arbitrary.
funds. The proposed co-siting
must aiso be a visible separation
in that there is no reason to except
requirements. it was argued. constitute a
between the Title X program and other
metropolitan hospitais from the
requirement to establish an "entirely
activities which are prohibited from
requirement that does not also apply to
separate facility" analogous to that
inclusion in the Title X program. To
rural hospitals. which may be the only
considered and rejected by the Supreme
determine whether sufficient separation
provider of services in an area. or to
Court and is thus invalid.
exists in a particular case. the
hospitals which are constructed without
Proponents of the regulations
Department will weigh the relevant
wings but have some other type of
uniformly supported the proposed
factors. The regulation identifies four
physical separation. As noted above. a
physical separation requirements. Many
non-exclusion factors relevant to such a
number of comments also stated that
argued that physical intermingling of
determination. See $ 59.9 below.
metropolitan hospitals typically locate
Title X projects with abortion facilities
However. because the rule below adopts
abortion-related services in the same
necessarily has the effect of subsidizing
a "facts and circumstances approach." it
area of the facility as family planning
the latter. contrary to Congressional
is felt that providing examples would be
services and not in separate wings. It
intent. Others contended that lack of
misleading. in that examples are
was also argued that the proposal.
physical separation necessarily leads to
unlikely to replicate the complex
together with the requirement for
the public perception that the
circumstances and conditions that the
separate entrances and exits does not
government is supporting abortion as a
Department will be considering when
take into account the concerns of inner
method of family planning. which is
making the individual determinations
city hospitals. which frequently restrict
contrary to the intent of section 1008
called for by the rule. Accordingly.
the number of entrances and exits for
that Title X funds not be used to
unlike proposed § 59.9. § 59.9 below
security reasons. For these reasons.
promote abortion as a method of family
contains no examples.
many public providers expressed the
planning. Because Title X clients do not
In light of these changes to the
view that the waiver for large
see the accounting and other "paper"
proposed rule. the Department makes
metropolitan hospitals would be of very
indices of separation. it was argued.
the following responses to the public
little help and that the co-siting
physical separation is the only
comments.
reasonable means to clarify that Title X
requirements would force them to forego
1. Cost. Because of the adoption of a
projects may not include abortion and
Title X funds.
case-by-case determination approach in
that the federal government insists on a
5. Legal authority. The proposed
the rules below. it is not possible to
clear adherence to its policy against
determine with any precision the costs
physical separation requirements were
spending federal money to facilitate
attacked as illegal on several grounds.
that grantees will face in
abortions. In this regard. it was evident
Numerous comments argued that there
accommodating to the rules. However.
from the comments of hundreds of
is no evidence that they are needed.
the Department would note that most of
individuals that they confused the Title
asserting that the Inspector General and
the actual or apparent requirements of
X projects with abortion providers or
GAO audits failed to show that Title X
proposed § 59.9 that caused the most
assumed that Title X projects were
grantees had intermingled project and
concern regarding costs. such as the
generally abortion providers.
abortion-reiated activities in any way.
stated requirement for separate
In this regard. it was argued that there is
B. Response
entrances and exits and the apparent
no evidence supporting the presumption
The Department has carefully
(aithough unintended) requirement to
of illegality with respect to common
considered the comments received
repave parking lots. no longer constitute
street or mailing addresses. It was also
concerning the proposed separation
per se tests under rules below.
argued that the requirements greatly
requirements and has made a number of
Certainly. the Department at this point
exceed what is needed to assure that
changes to the requirements in light of
does not have complete data about each
Title X funds are not used for abortion-
the comments received. In essence. the
of the 4.000 clinics presently in the
related purposes. and thus are invalid.
new rules adopt an approach that will
program so that it could determine how
The decisions in the litigation involving
enable the Department to make case-by-
much. if any, expense each would incur
the State of Arizona and Planned
case determinations as to whether a
to maintain program integrity. Indeed.
Parenthood of Central and Northern
given Title X project is physically and
the Department has in part chosen a
Arizona (see. e.q.. Planned Parenthood
financially separate from prohibited
case-by-case approach so as to be able
of Central and Northern Arizona V. The
activities. As stated in the proposed
to implement this policy with a greater
State of Arizona. 789 F. 2d. 1348 (9 Cir.
rules. meeting the requirement of section
understanding and sensitivity to the
1986). aff'd U.S.
107 S. CL 391
1008 mandates that Title X programs be
costs imposed. In any event. because the
(1986)) and Planned Parenthood of
organized so that they are physically
rules no longer contain the rigid physical
Billings. Inc. V. The State of Montana.
and financially separate from other
separation requirements of the proposed
supra. were cited in support of this
activities which are prohibited from
rules. it does not agree that the "worst
inclusion in a Title X program. Having a
case" estimates submitted of
argument. Finally. some comments also
contended that the proposed
program that is separate from such
approximately $50.000 per clinic are
requirements vioiate the First
activities is a necessary predicate to any
likely to be realized for many clinics.
Amendment. based on the decision in
determination that abortion is not being
Accordingiy. the Department is not
League of Women Voters. supra. In that
included as a method. of family pianning
persuaded that the rules below will
decision. it was argued. the Supreme
in the Title X program. Under the rules
substantially impact upon rural health
Court established the principle that the
below. the separation must be objective:
care providers.
government may not require the
that is. if the Title X program cannot be
The Department aiso is unpersuaded
recipient of a Federal benefit (in that
distinguished from prohibited activities
by the provider arguments that Title X
case. a broadcast license) to establish
conducted by the grantee or others. the
benefits from lack of separation from
Federal Register / Vol. 53. No. 21 / Tuesday. February 2. 1988 / Rules and Regulations
2341
abortion facilities due to the economies
Department will determinethat the
planning. or which assists a woman in
of scale that are realized. Indeed. such
project is in compliance with § 59.9.
obtaining an abortion as a method of family
comments only underscore the problem
Accordingly. the Department does not
planning. Actions are considered to
of commingling the Title X services with
believe that the concerns raised with
encourage. promote. or advocate abortion as
abortion services. both in the difficulty
respect to the ability of medical
a method of family planning if they in any
of ensuring that no subsidy in the other
personnel to act outside their
way have the effec: of facilitating obtaining
direction occurs. but also in creating the
employment by the project are valid.
abortion as a method of family planning.
appearance. if not the reality. of federal
These changes thus address and should
The proposed rule prohibited certain
support of abortion. Further. current
allay many of the cost concerns
specific actions: lobbying. providing
program policy allows grant funds to be
expressed by the public comments.
speakers promoting abortion and paying
used for the one-time costs associated
4. Treatment of large. metropolitan
dues to abortion advocacy organizations
with relocating a Title X clinic for the
hospitals: The Department has deleted
(proposed § 59.9(a)(1): using legal
express purpose of complying with the
the language relating to large hospitals.
action to make abortion available as a
rules below.
It agrees that this language was unclear
method of family planning (proposed
2. Continuity of care: The above
and suggested criteria that were never
§ 59.9(a)(2)): and developing or
changes aiso respond to several of the
intended to apply. Moreover. the
disseminating materials advocating
provider concerns with continuity of
approach adopted below makes such a
abortion as a method of family planning
care. as do the related changed
provision no longer necessary.
(proposed $ 59.9(a)(3). Five examples
discussed in the following section. The
5. Legal authority: The legal authority
were provided. The following four were
example typically cited-the Title X
for these regulations is discussed
termed impermissible under the statute:
clinic that is located at the same site as
extensively eisewhere in this preambie
providing a brochure advertising an
a project funded under another program
and does not need to be repeated here.
abortion clinic. paying dues to an
that provides genetic screening and
In brief. section 1008 prohibits the use of
organization which devotes a
counseling-may not be affected by the
title X funds in programs that include
substantial part of its activities to
requirements revised. if the project can
abortion as a method of family planning.
lobbying Congress for liberalized
show that the later project's activities
Thus. section 1008 is broader than a
abortion laws. dispiaying posters
meet the separation indicia of $ 59.9
mere restriction on the use of federal
encouraging clients to write legisiators
below. To the extent the rules below
funds. and cleariy authorizes the
to vote in favor of abortion. and
minimize continuity between family
Department to set out rules to
assisting clients in making appointments
planning and abortion. this is a result
implement its mandate that Title X
at abortion clinics: the fifth example.
which the Department views as
programs not include prohibited
concerning the activities of the Title X
consistent with section 1008.
activities. Based on the need to
project's personnel outside of the project
3. Separation of medical records.
implement the mandate of the statute
in writing legislators in support of pro-
personnel. and financial and accounting
and the Departments experience in
choice legisiation. was termed
systems: The requirements relating to
administering the program. the
permissible. See proposed $ 59.10(b).
separate financial and accounting.
Department has concluded that greater
A. Comments
personnel. and medical records systems
guidance and specificity is needed with
have been eliminated in response to the
regard to program separateness. Section
1. Provision of cbortion materials: The
concerns raised in the public comments.
59.9's case-by-case approach will allow
majority of comments opposing
See $ 59.9 below. However. in order to
the Department to implement the
proposed $ 59.10 criticized the
ensure financial separation of abortion
statutory mandate of program
prohibition of proposed $ 59.10(a)
from Title X and consistent with past
separateness with sensitivity to the
relating to assisting a woman to obtain a
practice as well as in recognition of the
circumstances of each program. Thus.
family planning abortion and actions
customary financial management
adopting the case-by-case approach
that "in any way have the effect of
practices of health care providers. $ 59.9
reflects the Department's efforts to
facilitating obtaining abortion." together
below provides that one of the indicia of
reconcile the commands of the statute
with proposed $ 59.10(a)(3) relating to
separation to be considered is the
with the concerns expressed by
the development and dissemination of
existence of separate accounting
commenters. As such. it reflects a
materials (including printed matter and
records that are separate from those of
rasonable exercise of the Department's
audiovisual materials) advocating
any abortion activity it conducts. This. it
authority to promulgate rules for the
abortion as a method of family planning.
should be emphasized. represents no
administration of the Title X program.
The usual criticism was that these
change from longstanding program
With repsect to the constitutional claims
provisions are overbroad. in that they
practice. With respect to the issue of
raised by some commenters. the
fail to distinguish between the provision
shared personnel. § 59.9 below
Department disagrees that the cases
of factual information and advocacy of
establishes the existence of separate
cited. particularly League of Women
abortion. It was argued that the
personnel as one of the regulatory
Voters. supra. preciude the policies
provisions would prohibit Title x
indicia of separation. However. as noted
below. for the reasons more fully
grantees from disseminating such things
above with respect to this section. the
discussed previously and below.
as patient package inserts included in
existence of this factor-like the
VI. Advocacy of Abortion
oral contraceptive packages and the
existence of any of the factors set out in
patient information required by the Food
§ 59.9-in a particular case is not a per
Proposed $ 59.10 set out a number of
and Drug Administration regarding the
se disqualification. but rather must be
restrictions designed to ensure that Title
IUD. or even keeping copies of the
considered in light of the facts and
X grantees do not promote or encourage
telephone yellow pages which contain
circumstances of the project as a whole.
abortion as a method of family planning
advertisements by abortion clinics. A
Where sharing of personnel exists. but
with Title X funds. Under proposed
national medical organization suggested
the project can demonstrate on an
§ 59.10(a), a Title X project could-
that the "assisting" and "facilitating"
overall basis that it is objectively
take no action which encourages. promotes.
language of proposed § 59.10(a) would
separated from prohibited activities. the
or advocates abortion as a method of family
preciude Title X projects from providing
2942
Federal Register / Vol. 53. No. 21 / Tuesday, February 2. 1988 / Rules and Regulations
copies of a patient's medical records on
prevent Title X grantees who are pro-
substantial part of its activities were
request. if the request came from an
abortion from exercising their First
devoted to lobbying.
abortion facility. which conflicts with
Amendment rights. In this regard. the
B. Response
the principle that patients have a right to
provisions were criticized as politically
their medical records.
motivated and not politically neutral: it
The Department has considered the
A series of related legal objections
was argued that they permit Title X
comments received. but for the reasons
were also raised. The same criticisms
funds to be used to support pro-life
stated below. has not accepted them.
relating to informed consent and
political. legal and lobbying activities.
Accordingly. $ 59.10 below remains
voluntary acceptance of services that
but prohibit such use of funds for the
substantially as proposed.
were articulated with respect to the
contrary point of view. In addition. a
1. Provision of abortion materials: The
proposed couns ling provisions were
number of specific criticisms of the
Department notes that many of the
likewise statec with respect to proposed
provisions were expressed. The
comments criticizing these provisions
§ 59.10. In addition. many opponents
restriction on payment of dues to
proceed from a misunderstanding of the
argued that these provisions are
organizations that advocate abortion
requirements or have been addressed in
unconstitutionally vague in failing to
was objected to as depriving grantees of
connection with revisions to the rest of
make clear exactly what the limits on
access to needed professional
the regulation. As noted in the
expression are. so that a provider could
information and services. as well as
discussion at sections IIIB1 and IIIS2
never be certain whether it had violated
being an unconstitutional restriction of
above. it is not the intent of these
them or not It was also argued by a
their right to free association under the
regulations to restrict the provision of
number of organizations that the
First Amendment The restrictions on
information to Title X clients necessary
provisions violate the First Amendment
lobbying were generally criticized as
to assess the risks and benefits of
in constituting viewpoint-based
unnecessary. several comments argued
different methods of contraception. See
discrimination (by forbidding pro-
that IRS requirements and OMB Circular
§ 59.8(a)(4) above. Similarly. keeping the
abortion but not anti-abortion speech)
No. A-122 already limit lobbying by
yellow pages in the project office and
and by requiring grantees to relinquish
grantees. and stated that there is no
provision of medical records to another
their right to speech that is protected
evidence that grantees are not
medical provider would not be
under Griswold V. Connecticut. supra. It
complying with these requirements. It
proscribed. as they are not actions that
was further argued that these
was also asserted that the lobbying
directly "assist" a woman to obtain an
restrictions on speech are not
restrictions violated the First
abortion.
permissible on the theory that a benefit.
Amendment. Similar arguments were
With respect to the legal criticisms of
rather than a right. is denied. as the
made with respect to the restriction on
these provisions. the Department does
government may not condition receipt of
litigation which in addition. was
not believe that they have merit. It
a benefit upon the relinquishment of
criticized as vague. Questions were
notes. as an initial matter. that with the
First Amendment rights. as such a
raised as to whether a grantee. which in
exception of the provision relating to
condition would have a chilling effect on
its non-project activities provides
payment of dues, the policies at
the exercise of those rights. Perry V.
abortions. could defend itself under this
proposed § 59.10(a) represent the long-
Sindermann. supra. Planned Parenthood
provision in any malpractice actions
standing interpretation of section 1008
of Central and Northern Arizona V. The
arising out of such abortions.
by this Department. of which the grantee
State of Arizona. supra. and Alan
Proponents of the proposed provisions
community should be aware and is
Guttmacher Institute V. McPherson. 616
generally took the position that if
currently bound What the final rules
F. Supp. 195. 202 (S.D.N.Y. 1985) were
anything. they did not go far enough. In
below do is reduce to readily accessible
cited in support of this argument.
this regard. it was argued that it is
written. regulatory form compliance
Supporters of the proposed provisions.
inconsistent to restrict a grantee from
standards which were articulated in an
on the other hand. generally expressed
advocating abortion if the parent
OGC opinion written in 1978 and a
the view that they were appropriate and
organization is permitted to do so on the
matter of public record since 1980. It is
needed. They contended that advocacy
ground that the federal funds "free up"
difficult to understand how. with these
of abortion is not a proper governmental
funds of the parent organization for such
policies reduced to written. regulatory
function and is certainly not a "family
advocacy activity. In addition. one
form and with concrete applications of
planning" service which should be
comment took the position that the
them provided as in the proposed rules
subsidized with federal funds. With
example at proposed $ 59.10(b)(2) was
and the final rules below. the regulatory
regard to constitutional concerns. it was
inconsistent with the logic of the
framework can be challenged as
argued that the provisions are
regulation as a whole: IF the point of the
"vague." when the status quo. which the
constitutional because the constitutional
provisions is to separate Title X funds
opponents of the regulations uniformly
guarantees under the First Amendment
from abortion advocacy. then payment
seek to continue. is not. The criticisms
do not apply to the government those
of dues to an organization that devotes
made on informed consent and
acting as agents of the government have
any part of its activities to lobbying for
"voluntariness" grounds are. with
no greater rights than the government
abortion should be prohibited. The
respect to the provisions of $ 59.10.
itself. and accordingiy the government
proponents of the provisions also took
irrelevant. as those provisions in general
may lawfuily restrict what they say on
the position that since the restrictions
do not relate to treatment. per se.
its behalf. Also cited in support of the
only apply to the Title X project itself.
However. to the extent that the
constitutionality of these provisions was
they are constitutional. Regan V.
requirements of $ 59.10 do impinge on
Regan V. Taxation Without
Taxation Without Representation.
treatment. these concerns are addressed
Representation. supra.
supra. was cited in support of this
at section IIIB2 above. With respect to
2 Dues payment. lobbying and
argument. as. it was noted. that case
the claims that $ 59.10 is
litigation: The remaining provisions of
specifically concerned the availability of
unconstitutional. the Department
proposed $ 59.10 attracted somewhat
a tax exemption with regard to lobbying
disagrees that these claims have merit.
less comment. A general criticism of
activities: in that case. the organization's
These provisions are constitutional
these provisions was that they would
tax exemption was denied because a
under the standards set forth in Regan v.
Federal Register i Vol. 53. No. 21 i Tuesdav. February 2. 1988 / Rules and Regulations
2943
Taxation Without Representation.
and the claim that they violate the First
3541. that these rules will not have a
supra. and League or Women Voters.
Amendment IS without memit
significant impact on a substantial
suara. because they do not prohibit
number of small entities.
orcanizations from establishing
VII. Regulatory Impact Analysis
affiliates that provide abortion
C. Executive Order 12612
A. Executive Order 12291
materials. They permit an organization
to operate both a Title X project and a
Executive Order 12291 requires that a
Executive Order 12512 requires that a
project that would educate women on
regulatory impact analysis be performed
Federalism Assessment be prepared in
for any "major rule." as defined in the
any cases in which proposed policies
abortion as long as they are separate
Executive Order. Although the rules
have significant federalism implications
and distinct.
below establish standards of
as defined in the Executive Order.
2. Dues payment. lobbying. and
litigation: The Department disagrees
performance for all Title X programs.
Among the types of actions which can
with the comments criticizing the
only the requirements under $ 59.9.
have such implications are federal
proposed policies as not politically
Maintenance of program integrity. may
regulatory actions which preempt State
neutral. It is true that § 59.10. like the
have effects of the type and/or
law. As discussed above. the
remainder of the rules below. does
magnitude covered by Executive Order
Department does not intend or interpret
12291. As discussed above. in reponse to
these rules as imposing additional costs
exhibit a bias in favor of childbirth and
comments about costs of complying with
or burdens on the States or preempting
against abortion as a method of family
planning. However. this bias is explicit
the rules. the Department has changed
State laws and has argued that these
the rules to require appropriate and
rules will not have any of those effects.
in the statute itself. and is nqt a creation
of this Department or this
objective separation between the Title X
nor are they inconsistent with any of the
program and activities prohibited under
principies. criteria or requirements
Administration. Moreover. as noted
above. virtuaily all of the policies in
the subpart. The Department at this
established by this Executive Order. To
§ 59.10 represent program requirements
point does not have complete data about
the extent there are any additional costs
that antedate the present
each of the 4.000 clinics presently in the
for the operation of Title X programs
program to determine how much. if any.
resulting from these regulations. these
Administration. Thus. it considers these
expenses each will have to incur to
costs are small. (see the discussion of
criticisms to be unfounded.
maintain program integrity as mandated
Executive Order 12291. above) and are
With respect to the specific objections
to the provisions relating to dues
by Congress. However. since the rules
costs which will affect only the
payment lobbying and litigation. the
no longer contain the rigid physical
expenditure of Title X program funds.
Department disagrees that they have
separation requirements of the proposed
To the extend that these rules may have
merit. It should be noted in this regard
rules. the Department does not believe
any effect. underected by this analysis.
that the costs associated with
which would create any federalism
that the requirements apply only to the
implementation of the requirements
impact. the Department maintains that
project. Thus. if a grantee organization
contained in § 59.9 will even begin to
these regulations are necessary to
believes that its interests are best
approach the level of $100 million. The
ensure the integrity of the Title X
served by belonging to an organization
Secretary has determined. therefore.
program and appropriate enforcement of
that advocates abortion. it is free to join:
that this final rule is not a "major rule"
section 1008. Therefore. these rules
it simply may not use project funds for
as defined under E.O. 12291 because it
comply with the letter and spirit of
payment of dues. Similarly. if it wishes
will not have an annual effect on the
Executive Order 12612.
to lobby for the passage of pro-abortion
economy of $100 million or more. or
legislation. it may, so long as project
otherwise meet the criteria for which a
D. Paperwork Reduction Act
funds (including project personnel
regulatory impact analysis is required.
working on project time) are not used.
The final rules do not impose a burden
The same principle applies with respect
of information collection under the
B. Regulatory Flexibility Act
to the restriction on litigation. and thus
Paperwork Reduction Act. Information
the answer to the malpractice concern
The Regulatory Flexibility Act (5
collection requirements which were
raised by some providers is that the
U.S.C. Ch. 6) requires the federal
included in $ 59.9 of the proposed rules
organization may of course defend itself.
government to anticipate and reduce the
have been deleted. The requirement
See the examples at § 59.10(b) below.
impact of rules and paperwork
established at § 59.7 will be
requirements on small entities. Although
administered in such a way that it will
The Department has thus not accepted
the rules below establish standards of
not create any paperwork burden.
the criticism expressed by some
performance for all Title X programs.
Applicants for grants will be asked
supporters of the rule. i.e.. that the
only the requirements under § 59.9.
merely to sign an assurance of
restrictions of § 59.10 should apply to
Maintenance of program integrity, may
compliance with the requirements in
the organization in its entirely rather
have effects of the type covered by the
§ 59.8 through $ 59.10. Additional
than just to the Title X-supported
Regulatory Flexibility Act With one
documentary evidence will be requested
project. It does not agree that it has the
exception. the effect of the rules is to
of an applicant or grantee only on a
statutory authority to impose such a
eliminate existing requirements or
case-by-case basis in situations where
policy. as section 1008 by its terms
permissive provisions concerning the
such information is deemed necessary
applies solely to programs supported
provision of abortion-related services.
by the Secretary. The final rules do not
with Title x funds: therefore. activities
and as a result the rules should to this
contain any information collection
lying outside the project are not covered
extent produce a reduction in costs for
requirements subject to OMB approval
by the statutory prohibition. Moreover.
Title X programs. The exception is at
under the Paperwork Reduction Act.
such a policy would raise potential
§ 59.9. relating to separation of services
constitutional concerns. By the same
prohibited under this subpart from the
E. Family Impact
token. since the restrictions at issue
Title X program. For the reasons
The final rules have been reviewed in
affect only the project. and not the
discussed above. the Secretary certifies.
conformance with E.O. 12606. The effect
organization as a whole. they come
under 5 U.S.C. 605(b). enacted by the
of the final rules is to establish
squarely within the Regan case. supra.
Regulatory Flexibility Act (Pub. L 96-
standards of compliance concerning the
2914
Federal Register / Vol. 53. No. 21 / Tuesday. February 2. 1988 / Rules and Regulations
separation oi abortion services from the
6. Message of the rules regarding the
planning services includes
national family planning program.
status of the family: One message to the
preconceptional counseling. education.
The final rules were assessed under
public is that family planning is
and general reproductive health care
the seven criteria in section 1 of E.O.
separable from abortion and that the
(including diagnosis and treatment of
12506. We conclude that the rules below
government supports. through its
infections which threaten reproductive
will not have a significant potential
funding. programs that enable families
capability). Family planning does not
negative impact on family well-being.
to plan the number and spacing of their
include pregnancy care (including
based on the following determinations:
children. either through preventive
obsterric or prenatal care). As required
1. Impact on stability of the family:
methods of family planning or through
by section 1008 of the Act. abortion may
Although program services are provided
management of infertility problems. but
not be included as a method of family
without regard to. among other things.
not through elimination of unborn
planning in the Title X project Family
age. sex. number of pregnancies. or
children by abortion. In reviewing the
planning. as supported under this
marital status. it is inherent in the
public comments. the Department was
subpart. should reduce the incidence of
character of the services provided under
impressed that both supporters and
abortion.
the-program that other family members.
opponents of the proposed rules seemed
"Grantee" means the organization to
such as'a spouse. will be affected by the
to agree that Title X has in the past
which a grant is awarded under section
services. The limitations on project
linked family planning and abortion: the
1001 of the Act.
involvement with abortion in the rules
rules below break this link and dispel
below are intended to convey to the
any perception that Title X funds may
"Prenatal care" means medical
public the Department's concern for the
be used to support abortion services and
services provided to a pregnant woman
well-being of both mothers and their
activities.
to promote maternal and fetal health.
unborn children.
7. Message of the rules to young
"Program" and "projec:" are used
2 Impac: on parental influence: The
people concerning their behavior and
interchangeabiy and mean a coherent
rules below will lessen the influence of
social norms: The message to young
assembly of pians. activities and
service providers. and create an
people is that the federal government
supporting resources contained within
increased opportunity for parental
does not sanction abortion as a method
an administrative framework.
influence on the education. nurture. and
of family planning and that it will not
supervision of their children.
provide funding for actions that help
"Title X" means Title X of the Act. 42
Approximately 1,000.000 adolescents are
young women with an unintended
U.S.C. 300. et seq.
served by Title X Of those who become
pregnancy to obtain an abortion.
"Title X program" and "Title X
pregnant Title x will no longer counsel
or refer them for abortion. This
List of Subjects in 42 CFR Part 59
project" are used interchangeably and
mean the identified program which is
increases the likelihood of adolescents
Family planning-birth control. Grant
seeking parental advice when faced
programs-health. Health facilities.
approved by the Secretary for support
under section 1001 of the Act. as the
with pregnancy and reinforces that the
Dated: January 28. 1988.
context may require. Title X project
seeking of parental advice and
Robert E. Windom.
funds include all funds allocated to the
invoivement is preferable to government
Assistant Secretary for Health.
Title X program. including but not
services.
3. Governmental intrusion on family
Approved: January 28. 1988.
limited to grant funds. grant-reiated
activities: The rules below prohibit Title
Otis R. Bowen.
income or matching funds.
X projects from counseling once
Secretary.
§ 59.5 [Amended]
pregnancy is diagnosed and require
For the reasons set out in the
3. In 42 CFR 59.5(a). paragraph (a)(5) is
referral for services. Insofar as this
preamble. Subpart A. of Part 59. 42 Code
removed and paragraphs (a)(6) through
policy affects teenage clients of Title X
of Federal Regulations. is hereby
(a)(11) are redesignated as paragraphs
projects. it thus diminishes the role of
amended as set forth below.
(a)(5) through (a)(10) respectively.
federally funded entities in influencing
the childbearing decision and may serve-
PART 59-{AMENDED}
4. 42 CFR 59.5(b)(3)(i) is revised to
read as follows:
to increase the parental role.
1. The authority citation for Subpart A
4. Impact on family earnings: The
§ 59.5 [Amended]
of 42 CFR Part 59 is revised to read as
rules below will have no impact on
follows:
family earnings. as they relate solely to
(b)
receipt of health services under
Authority: 42 U.S.C. 300a-1
(3)
governmentally funded programs and
2. In 42 CFR 59.2. the following
(i) achieve community understanding
not to income-producing activities of
definitions are added:
of the objectives of the Title x program.
individuals. There should likewise be no
impact on family budgets in the
$ 59.2 [Amended]
5. In 42 CFR Part 59. $ 59.7 through
aggregate. as the decrease of services in
§ 59.13 are redesignated as § 59.11
some areas (e.g., prenatal services) will
"Family planning" means the process
through § 59.17 respectively. and new
be replaced by increased services in
of establishing objectives for the number
§ 59.7 through § 59.10 are added to read
other areas feg- preventive family
and spacing of one's children and
as follows:
planning services).
selecting the means by which those
5. Feasibility of less Federal
objectives may be achieved. These
$ 59.7 Standards of compliance with
government involvement: The rules
means include a broad range of
pronibition on abortion.
below principally invoive establishing
acceptable and effective methods and
A project may not receive funds under
standards for compliance with a federal
services to limit or enhance fertility.
this subpart unless it provides assurance
statute by recipients of federal grant
including contraceptive methods
satisfactory to the Secretary that it does
funds. The monitoring activities called
(including natural family planning and
not include abortion as a method of
for could not be discharged by a non-
abstinence) and the management of
family planning. Such assurance must
federal entity.
inferrility (including adoption). Family
include. as a minimum. representations
Federal Register / Vol. 53. No. 21 / Tuesday. February 2. 1986 / Rules and Regulations
2945
(supported by such documentation as
(2) A Title X project discovers an
separate. as determined in accordance
the Secretary may request) as to
ectopic pregnancy in the course of
with the review established in this
compliance with each of the
conducting a physical examination of a
section. from activities which are
requirements in $ 59.8 through & 59.10. A
client. Referral arrangements for
prohibited under section 100S of the Ac:
project must comply with such
emergency medical care are
and $ 59.8 and $ 59.10 of these
requirements at all times during the
immediately provided. Such action is in
regulations from inclusion in the Title X
period for which support under Title X is
compliance with the requirements of
program. in order to be physically and
provided.
paragraph (a)(2) of this section.
financially separate. a Title X project
(3) A pregnant woman asks the Title X
§ 59.8 Prohibition on counselting and
must have an objective integrity and
project to provide her with a list of
referral for abortion services; limitation of
independence from prohibited activities.
abortion providers in the area. The Title
program services to family planning.
Mere bookkeeping separation of Title X
X project tells her that it does not refer
funds from other monies is not
(a)(1) a Title X project may not
for abortion but provides her a list
sufficient. The Secretary will determine
provide counseling concerning the use of
which includes. among other health care
abortion as a method of family planning
whether such objective integrity and
providers. a local clinic which
or provide referral for abortion as a
independence exist based on a review
principally provides abortions. Inclusion
of facts and circumstances. Factors
method of family planning.
of the clinic on the list is inconsistent
relevant to this determination shall
(2) Because Title X funds are intended
with paragraph (a)(3) of this section
include (but are not limited to):
only for family planning, once a client
(4) A pregnant woman asks the Title X
served by a Tide X project is diagnosed
(a) The existence of separate
project to provide her with a list of
accounting records:
as pregnant. she must be referred for
abortion providers in the area. The
appropriate prenatal and/or social
project tells her that it does not refer for
(b) The degree of separation from
services by furnishing a list of available
abortion and provides her a list which
facilities (e.g., treatment consultation.
providers that promote the welfare of
consists of hospitals and clinics and
examination. and waiting rooms) in
mother and unborn child. She must also
other providers which provide prenatal
which prohibited activities occur and
be provided with information necessary
care and also provide abortions. None of
the extent of such probibited activities:
to protect the health of mother and
the entries on the list are providers that
(c) The existence of separate
unborn child until such time as the
principally provide abortions. Although
personnel:
referral appointment is kept. In cases in
there are several appropriate providers
(d) The extent to which signs and
which emergency care is required.
of prenatal care in the area which do not
other forms of identification of the Title
however. the Title X project shall be
provide or refer for abortions. none of
X project are present and signs and
required only to refer the client
these providers are included on the list.
material promoting abortion are absent.
immediately to an appropriate provider
Provision of the list is inconsistent with
§ 59.10 Prohibition on activities that
of emergency medical services.
paragraph (a)(3) of this section.
encourage, promote or advocate abortion.
(3) A Title X project may not use
(5) A pregnant woman requests
prenatal. social service or emergency
information on abortion and asks the
(a) A Title X project may not
medical or other referrals as an indirect
Title X project to refer her to an
encourage. promote or advocate
means of encouraging or promoting
abortion provider. The project counselor
abortion as a method of family planning.
tells her that the project does not
This requirement prohibits actions to
abortion as a method of family planning.
assist women to obtain abortions or
such as by weighing the list of referrals
consider abortion an appropriate
in favor of health care providers which
method of family planning and therefore
increase the availability or accessibility
perform abortions. by including on the
does not counsel or refer for abortion.
of abortion for family planning purposes.
Prohibited actions include the use of
list of referral providers health care
The counselor further tells the client that
the project can help her to obtain
Title X project funds for the following:
providers whose principal business is
the provision of abortions. by excluding
prenatal care and necessary social
(1) Lobbying for the passage of
available providers who do not provide
services. and provides her with a list of
legislation to increase in any way the
abortions. or by "steering" clients to
such providers from which the client
availability of abortion as a method of
providers who offer abortion as a
may choose. Such actions are consistent
family planning;
method of family planning.
with paragraph (a) of this section.
(2) Providing speakers to promote the
(4) Nothing in this subpart shall be
(6) Title X project staff provide
use of abortion as a method of family
contraceptive counseling to a client in
planning:
construed as prohibiting the provision of
(3) Paying dues to any group that as a
information to a project client which is
order to assist her in selecting a
medically necessary to assess the risks
contraceptive method. In discussing oral
significant part of its activities
and benefits of different methods of
contraceptives. the project counseior
advocates abortion as a method of
contraception in the course of selecting
provides the ciient with information
family planning;
contained in the patient package insert
(4) Using legal action to make
a method: provided. that the provision of
this information does not include
accompanying a brand of oral
abortion available in any way as a
counseling with respect to or otherwise
contraceptives. referring to abortion
method of family planning: and
promote abortion as a method of family
only in the context of a discussion of the
(5) Developing or disseminating in any
relative safety of various contraceptive
way materials (including printed matter
planning.
methods and in no way promoting
and audiovisual materiais) advocating
(b) Examples. (1) A pregnant client of
a Title X project requests prenatal care
abortion as a method of family planning.
abortion as a method of family planning.
The provision of this information does
(b) Examples. (1) Clients at a Title X
services. which project personnel are
qualified to provide. Because the
not constitute abortion counseiing or
project are given brochures advertising
referral.
an abortion clinic. Provision of the
provision of such services is outside the
brochure violates subparagraph (a) of
scope of family planning supported by
§ 59.9 Maintenance of program integrity.
this section.
Title X the client must be referred to
A Title X project must be organized so
(2) A Title X project makes an
appropriate providers of prenatal care.
that it is physically and financially
appointment for a pregnant client with
2946
Federal Register / Vol. 53. No. 21 / Tuesday, February 2. 1988 / Rules and Regulations
an abortion clinic. The Title X project
association by the organization does not
6. In addition to the amendments set
has violated paragraph (a) of this
violate paragraph (a)(3) of this section.
forth above. in 42 CFR Part 59 remove
section.
(5) An organization that operates a
the words "project" or "projects" or
(3) A Title X project pays dues to a
Title X project engages in lobbying to
"project's" and add in their piace. the
state association which. among other
increase the legal availability of
words "Title X project" or "Title X
activities. lobbies at state and local
abortion as a method of family planning.
projects" or "Title X project's."
levels for the passage of legislation to
The project itself engages in no such
respectively. in the following places:
protect and expand the legal availability
activities and the facilities and funds of
(a) Section 59.2 definition of "low
of abortion as a method of family
the project are kept separate from
income family":
planning. The association spends a
prohibited activities. The project is not
(b) Section 59.5(a)(1):
significant amount of its annual budget
in violation of paragraph (a)(1) of this
(c) Section 59.5(b). introductory text:
section.
(d) Section 59.5(b)(3)(iii):
on such activity. Payment of dues to the
(6) Employees of a Title X project
(e) Section 59.5(b)(4):
association violates paragraph (a)(3) of
write their legislative representatives in
(f) Section 59.5(b)(7):
this section.
support of legislation seeking to expand
(g) Section 59.5(b)(10);
(4) An organization conducts a
the legal availability of abortion. using
(h) Section 59.6(a):
number of activities. including operating
no project funds to do so. The Title X
(i) Newly redesignated $ 59.11(a):
a Title X project. The organization uses
project has not violated paragraph (a)(1)
(k) Newly redesignated $ 59.11(a)(7):
non-project funds to pay dues to an
of this section.
(I) Newly redesignated $ 59.11(b):
association which. among other
(7) On her own time and at her own
(m) Newly redesignated $ 59.11(c):
activities. engages in lobbying to protect
expense. a Title X project employee
(n) Newly redesignated § 59.12(a). the
and expand the legal availability of
speaks before a legislative body in
first time it appears:
abortion as a method of family planning.
support of abortion as a method of
(o) Newly redesignated § 59.15:
The association spends a significant
family planning. The Title X project has
(p) Newiy redesignated $ 59.16(a).
amount of its annual budget on such
not violated paragraph (a) of this
[FR Doc. 88-2089 Filed 1-29-38: 9:13 am]
activity. Payment of dues to the
section.
BILLING CODE 4160-17-M
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marr
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
THE DIRECTOR
July 11, 1991
Honorable Robert Dole
United States Senate
Washington, D.C. 20510
Dear Mr. Leader:
The purpose of this letter is to express the
Administration's views on the Labor, Health and Human Services,
Education, and Related Agencies Appropriations Bill, FY 1992, as
passed by the House.
The House bill contains a provision that would permit the
use of Title X funds for counseling on abortion. Title X funds
are intended only for family planning. Under current
regulations, pregnant women who seek services from Title X funded
projects are now appropriately referred for such counseling to
qualified providers. The President stated in a letter to
Majority Leader Mitchell and Republican Leader Dole on June 4th
that he would veto any legislation that weakens current law or
existing regulations for abortion-related activities. His
intention is to assure that no Federal funds are used to support
abortion. He is not in any respect seeking to impose a so-called
"gag rule." The President, of course, remains committed to the
protection of free speech. He would veto this bill if it were
adopted as presently written, and will accept a bill only if it
is consistent with the principles here articulated.
The Administration has concerns with several other
provisions of the House-passed bill. In its consideration of
this bill, the Subcommittee is respectfully requested to address
these concerns, noted below, and to develop a bill that reflects
more substantially the President's priorities.
The House has created a contingent appropriation to provide
additional funds for administration of the unemployment insurance
(UI) system. Under the House language, an additional $30 million
would be provided for every 100,000 increase in the average
weekly insured unemployment (AWIU) projected by the Department of
Labor over the 3.24 million AWIU level assumed in the President's
FY 1992 Budget request. Such additional funds would be provided
without further action by the Congress and the President.
IDENTICAL LETTERS SENT TO HONORABLE MARK O. HATFIELD,
HONORABLE ROBERT C. BYRD, HONORABLE TOM HARKIN,
AND HONORABLE ARLEN SPECTER
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In an earlier Statement of Administration Policy, we advised
that the President's senior advisers would recommend that he veto
this bill if it contained the UI provision. This recommendation
was based on the assumption that the provision reclassified
discretionary UI administrative costs as mandatory expenditures
-- a fundamental change in the Budget Enforcement Act (BEA).
The Congressional Budget Office has a different
interpretation of this provision: they classify it as a
contingent appropriation. After consulting with them and
reviewing the reasons for their interpretation, we now agree with
them. Therefore, OMB will score $76 million in budget authority
for the contingency as a result of this provision. However,
despite this change in scoring, the Administration is still
opposed to the provision for the reasons stated below. But the
President's senior advisers would not recommend that he veto
legislation that contains this provision if the current scoring
interpretation of the provision prevails.
Aside from the contingent appropriation, the House bill
provides discretionary funding for UI administrative costs at the
President's requested level of $2.3 billion. The Administration
is pleased with this action and encourages the Senate to fund UI
administrative costs at this level. The Administration has
indicated that, to the extent that changed real growth and
unemployment forecasts cause unexpected UI administrative cost
increases, the amount by which the revised estimates exceed the
budget request would be designated as "emergency" funds and thus
exempt from the BEA spending limits. As a result, no new
contingency fund is necessary or appropriate.
The Administration objects to the House's inglusion of $600
million in "dire emergency" funding for the Low Income Home
Energy Assistance Program (LIHEAP). The House's base funding
level of $1.0 billion is generally consistent with the
President's request of $1.025 billion. The budget request for a
$100 million contingency appropriation, however, is based on
specific market criteria, including a 20-percent increase in oil
prices. In contrast, the House's "emergency fund" is
specifically designed to circumvent the discipline of the
domestic discretionary spending limits established by the BEA.
Under the House's proposal: (1) the $600 million would become
available if the President submitted a request designating the
funding as an emergency; and (2) the resulting funding would be
considered to be over the spending limits mandated by the BEA.
2
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It is the Administration's position that annual
appropriations for programs such as LIHEAP, the requirements for
which can be -- and have been for many years -- reasonably
estimated in advance, should not be designated as "emergency."
Therefore, the Office of Management and Budget would not
recommend to the President that he designate any of these funds
as "emergency." If the Congress' priorities include higher
spending for LIHEAP, then the Administration believes that the
Congress should enact a larger regular appropriation, with
offsetting reductions in other programs.
The House has funded only $69 million of the requested $139
million for the Healthy Start Initiative. This initiative
targets funds for high-risk infant mortality areas and is a high
priority of the Administration. The reduced level of funding
provided by the House bill would severely limit the Department's
ability to address this public health crisis. The Senate is
urged to fund fully the Healthy Start Initiative.
The $257 million level of funding recommended by the House
for the Health Care Financing Administration's (HCFA's)
contractor account greatly exceeds any previous contingency fund
level. The FY 1992 Budget proposes a $100 million contingency.
Further, language of the House bill would provide for release of
the contingency funds for "unanticipated costs," instead of for
"unanticipated workloads." The House language would greatly
increase the likelihood that these funds may be utilized.
The Administration appreciates the willingness of the House
to reserve $250 million for the AMERICA 2000 initiative, which is
pending authorization. However, $690 million is required for
this initiative, of which $46.5 million requires no new
authorizing legislation. It is the Administration's view that
the full requested amount should be included in this bill to
ensure the successful implementation of the AMERICA 2000
initiative. All elements of this initiative are essential to the
States' efforts to reform education.
The House bill would provide $54.4 million less than the
President's request for research, statistics, and improvement
activities within the Department of Education. of that amount,
the President has requested $27.5 million to support important
research and data collection activities that would help States
and localities to improve educational performance and achieve the
National Education Goals. These activities are vital to.
successful education reforms. The Senate is urged to restore
funding to the requested level.
3
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The House bill would not provide any of the increases
requested in the FY 1992 Budget for drug treatment and prevention
programs of the Alcohol, Drug Abuse, and Mental Health
Administration. Further, the bill would not provide any of the
$68 million requested for grants to increase drug abuse treatment
capacity. The Administration urges the Senate to provide funds
for these high-priority programs at the levels requested in the
FY 1992 Budget in anticipation of enactment of authorizing
legislation.
On the basis of OMB's initial scoring, the Administration
finds that the House bill exceeds the Senate 602 (b) allocation
for domestic discretionary budget authority by $137 million and
the domestic discretionary outlay allocation by $622 million.
This is in large part due to the House's excessive funding of
contingencies.
Additional Administration concerns with the bill as passed
by the House are discussed in the enclosure.
With best regards,
Richme Jann
Richard Darman
Director
Enclosure
4
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(Senate Subcommittee)
ADDITIONAL CONCERNS
H.R. 2707 -- DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES,
AND EDUCATION, AND RELATED AGENCIES
APPROPRIATIONS BILL, FY 1992
MAJOR PROVISIONS OPPOSED BY THE ADMINISTRATION
A. Funding Levels
Department of Health and Human Services:
Interim Assistance to States for Legalization. The
House bill would use $242 million of the FY 1993
discretionary outlay spending limit by moving FY 1992
Interim assistance to States for legalization (SLIAG)
outlays a few months into FY 1993. The
Administration proposed permanently rescinding these
funds to free up resources for higher priority
spending in FY 1992 and subsequent years. The House,
in electing not to make real reductions in resources
for this activity, has, instead, shifted the outlay
burden into the future. The Administration continues
to believe that rescission of these funds is
appropriate.
Health Resources and Services Administration (HRSA)
-- Health Professions Training. The Administration
is pleased that the House has met the FY 1992
President's request for high-priority health
professions training programs that assist
disadvantaged and minority students in pursuing a
health professions education. However, the
Administration continues to object to the funding of
numerous low-priority categorical grants, most of
which provide medical and allied health school
curriculum assistance. The House has provided
approximately $300 million for categorical health
professions training programs, many of which are
untargeted and outdated grants. After two decades of
heavy Federal support, the aggregate shortage of
health professionals has abated. The Administration
believes that this money would be far better spent in
broad-based student aid programs for low income
students -- such as Pell Grants -- than for these
special interest grants. There is no justification
for providing special assistance only to these
selected institutions and professions.
National Institutes or Health (NIH) -- Biomedical
Research. The Administration commends the House for
placing a high priority on biomedical research,
consistent with the President's FY 1992 Budget.
However, the Administration observes that after NIH
absorbs its portion of the HHS-wide reduction of $124
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million in funding for salaries and expenses
recommended by the House, the net funding level for
NIH may fall below the President's request. This
could delay the advances in biomedical research
sought in the FY 1992 Budget.
NIH -- One-Percent Transfer Authority. The
Administration is concerned that the House did not
approve the request for authority for the Director of
NIH to direct up to one percent of the NIH
appropriation to important research opportunities as
they emerge. This important authority is needed so
that the NIH Director may adjust resource allocations
as public health challenges arise.
NIH -- Human Genome. The Administration regrets that
the House has allocated only $93 million to the human
genome project, instead of the $110 million requested
in the FY 1992 Budget, and urges the Senate to
restore funding to the requested level.
Office of the Inspector General (OIG). The
Administration objects to the House's $9.5 million
reduction from the request for the OIG. The House
funding level would jeopardize the Inspector
General's ability to carry out critical functions,
including added responsibilities required to support
full implementation of the Chief Financial Officers
Act of 1990.
Department of Education:
Vocational Education. The House bill would provide
$366.7 million above the President's request for
vocational education. The Administration believes
that such an increase is inappropriate at this time.
The House report accompanying the bill directs the
largest increases to programs that were either added
or substantially revised by the recent Vocational
Education reauthorization. Implementation of these
programs is just beginning. It is the
Administration's view that an increase in funding
should not be considered until there is evidence on
which to evaluate the implementation of the new
provisions.
Head Start. The House bill would provide an increase
of $262 million over the FY 1991 enacted level of
$1,952 million, including $250 million through a
transfer of funds from the Department of Education to
the Department of Health and Human Services. The
Administration believes that all funding for Head
Start should be provided through appropriations to
the Department of Health and Human Services.
2
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School Improvement Program. The Administration
objects to the House's failure to adopt the
President's proposal to consolidate the Education for
Homeless Children and Youth program into a
consolidated authority to be administered by the
Department of Housing and Urban Development. The
President's proposal would provide unified funding to
support comprehensive innovative programs to meet
long-term needs of the homeless. Instead, the House
has retained the highly compartmentalized structure
of current law and has provided $37 million, an
increase of $29.7 million over the FY 1991 funding
level, for this program.
In addition, the House has provided $20.8 million
over the President's request for the Dropout
Prevention Demonstration. The House has
inappropriately provided funding for this program as
if it were a regular grant program. The additional
money is not required to complete the current round
of demonstrations; another set of Federally-funded
projects is not needed. Evaluation of the current
demonstration projects will provide information
needed to guide and improve the many dropout
prevention programs already being funded through non-
Federal sources.
Howard University. The House bill would provide
$23.6 million more than requested for "emergency
construction," providing 100-percent financing for
the repair of Howard's electrical and water systems
and for the repair and replacement of Howard's data
processing systems. The President's request contains
no construction funding, on the grounds that it is
inappropriate for the Federal Government to assume
responsibility for maintaining the physical plant of
the University.
Education Research, Statistics, and Improvement. The
report accompanying the House bill recommends that
the Department of Education create an Office of
Educational Technology and earmarks $8 million to
initiate a single, model High Tech Demonstration
Program, to be awarded to one local educational
agency. This is substantial funding for a single
project. The Department is heavily engaged in a
variety of projects to explore high technology, and
it would be highly inappropriate to invest this much
money in any one project at this time.
Chief Financial Officers Act of 1990 (CFOs Act). The
Administration supports full implementation of the
CFOs Act of 1990. Funding requested by the President
for the preparation and audit of financial statements
for Program administration and the Office of the
3
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Inspector General was not provided by the House. The
Administration urges the Senate to restore this
funding to carry out implementation of the CFOs Act.
Department of Labor:
Training and Employment Services -- Title III of the
Job Training Partnership Act. The House has added
$50 million for the Clean Air transition assistance
program to the President's FY 1992 request of $527
million for the Economic Dislocation and Worker
Adjustment Assistance (EDWAA) program, authorized in
title III of the Job Training Partnership Act. The
Administration's request includes $50 million for
Clean Air transition assistance within the $527
million total requested. Nearly 295,000 dislocated
workers would be served under the Administration's
EDWAA request, representing about 55 percent of the
annual average number of prime-age, experienced
dislocated workers reported in surveys conducted by
the Bureau of Labor Statistics. This participation
rate compares favorably with participation rates
reported in evaluations of several Labor Department
worker readjustment demonstration projects.
Moreover, the Administration request takes into
account the $150 million provided in FY 1991 for
three years to finance worker adjustment assistance
programs authorized by the Defense Conversion
Adjustment program.
Training and Employment Services -- Job Corps. The
House has added $31 million to the Administration's
$867 million request for new budget authority for the
Job Corps in FY 1992. The House has denied the
budget request for a $20 million reappropriation of
FY 1989 capital funds earmarked for program
expansion. Instead, the House bill would provide an
unrequested $20 million to replace the proposed
reappropriation and another $11 million in additional
funding, and would extend by one year the time over
which the FY 1989 capital funds may be spent. In
report language, the House directs the Administration
to use the $20 million to carry out the six-center
expansion program in an "expeditious manner.
The Administration firmly believes that the House's
priorities for the Job Corps program are misdirected.
The FY 1992 Budget calls for halting any expansion
beyond the two new centers opening in program year
1991. Diverting limited resources to finance program
expansion could hurt program outcomes at existing
centers. In addition, expanding the program by four
additional centers would require substantial
additional appropriations for capital costs, and
would boost operations costs by about $20 million
4
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annually. The Administration urges the Senate to
provide funding for Job Corps programs consistent
with the President's request.
State Unemployment Insurance and Employment Services
Operation (SUIESO) -- Employment Service. The House
has provided $55 million in additional funds for
allotments to States to operate local Employment
Service offices and an additional $12 million for
automation of State activities, the latter amount
made unavailable for obligation until after September
30, 1992. This amounts to $67 million above the
President's request. In the Administration's view,
there are higher priority uses of these funds, and
the Senate is urged to finance the Employment Service
at the requested level.
B. Language Provisions
Department of Health and Human Services:
Health Education Assistance Loans Program (HEAL).
The Administration commends the House for recognizing
the problem of increasing default expenditures for
the HEAL program, and agrees that this cannot and
should not continue. The Administration is pleased
that the House has again placed a limitation on HEAL
annual obligational authority and, further, urges the
Senate to adopt an annual limit on HEAL obligational
authority of $185 million rather than $260 million as
proposed by the House. Given the Government's total
liability from the nearly $2.6 billion in HEAL loans
already outstanding and the high levels of default
rates among some categories of schools, the program
warrants complete restructuring. The Administration
is working with the authorizing committees to improve
the targeting and effectiveness of the HEAL Program.
Department of Labor:
Job Corps. The House bill includes language in
sections 103 and 104 of the General Provisions that
would prohibit the use of funds to contract out
operations of Job Corps' Civilian Conservation
centers with a non-governmental entity (section 103)
and that would restrict the use of Job Corps funds
for paying legal expenses in criminal cases (section
104). These provisions would limit the
Administration's flexibility to manage the Job Corps
program efficiently, and the Senate is urged to
delete them.
5
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Occupational Safety and Health Administration (OSHA).
The Administration objects to the inclusion of
restrictive provisions in OSHA's appropriations
language concerning reporting requirements related to
small farms; recreational hunting, shooting, or
fishing; and small firms. These restrictions would
limit the agency's flexibility to focus inspection
resources on workplaces with the poorest safety
records. In addition, the change in the reporting
instruction that would require employers to report
employment accidents that result in the
hospitalization of one or more employees is
objectionable. OSHA would be required to investigate
an increased number of accidents, placing an
additional burden on the agency's already scarce
resources.
Mine Safety and Health Administration (MSHA). The
Administration objects to the inclusion of
appropriations language that would exclude sand,
surface limestone, and similar mine operations from
coverage under section 115 of the Mine Act. The
hazards faced by these mining operations are no less
serious than the hazards faced in other mining
operations. Statistics show that these mines are no
safer than other metal and non-metal mines.
6
LABOR, HEALTH AND HUMAN SERVICES AND EDUCATION APPROPRIATIONS BILL, FY 1992
10-Jul-91
(In millions of dollars)
12:16 FM
FY 1991
President's
House
House difference from:
Enacted 1/
Request
Floor 2/
Enacted
Request
Major Programs
BA
OL
BA
OL
BA
OL
BA
OL
BA
OL
DOMESTIC DISCRETIONARY:
Department of Education:
Compensatory education for the
disadvantaged
6,224
5,335
6,224
6,037
7,076
6,139
851
803
851
102
Impact ald
781
815
620
695
765
806
-16
-10
145
111
School improvement programs
1,583
1,541
1,501
1,597
1,578
1,606
-5
65
77
9
Educational Excellence
629
75
250
30
250
30
-379
-45
Billingual and Immigrant education
198
193
201
199
249
204
51
12
48
6
Education for the handcapped
2,467
2,317
2,730
2,632
2,823
2,643
355
326
93
11
Vocational and adult education
1,246
901
1,265
1,036
1,652
1,063
406
181
387
47
Student financial assistance
6,714
SENT BY:Xerox Telecopier 7020 7-11-91 :11:43AM
5,970
6,714
6,541
6,853
6,546
139
576
139
5
Higher education
771
600
795
637
821
641
51
41
27
5
Other
991
971
1,077
1,025
1,128
1,056
137
85
51
31
Total, Department of Education
20,974
18,644
21,754
20,473
23,194
20,755
2,220
2,110
1,440
282
Department of Health and Human Services:
Health resource S and services
2,122
1,902
2,019
1,946
2,139
2,018
17
116
121
72
Centers for dise ase control
1,312
1,234
1,398
1,268
1,391
1,284
79
51
-7
-4
National Institutes of Health
8,277
7,783
8,775
8,253
8,825
8,274
548
492
50
21
Alcohol, Drug Abuse and Mental
Health Administration
2,947
2,608
3,048
2,909
2,918
2,858
-30
250
-131
-51
Office of the Assistant Secretary for
Health
67
83
65
78
61
76
-6
-7
T
-2
Health Care Finencing Administration
2,683
2,569
2,334
2,326
2,878
2,715
195
146
543
390
Low income home energy assistance
1,610
1,669
1,025
991
1,600
1,058
-10
-611
575
68
Refuges and entrent assistance
411
386
411
408
294
326
-117
-59
-117
-82
Community services block grant
2023953174-
436
444
11
148
421
426
-15
-18
410
279
Interim assistance to States for legalization
-567
-1,123
-242
-1,123
-242
-558
-242
Human development services
3,462
3,157
3,667
3,627
3,758
3,546
297
389
91
-81
Supplemental security Income program
1,415
1,278
1,321
1,444
1,371
1,444
-44
166
50
Other
1,069
344
1,052
881
1,091
885
22
542
39
4
Total, Department of Health and
Human Services
25,244
23,456
24,004
24,056
25,624
24,671
380
1,215
1,621
614
LABOR, HEALTH AND HUMAN SERVICES AND EDUCATION APPROPRIATIONS BILL, FY 1992
10-Jul-91
(in millions of dollars)
12:16 PM
FY 1991
President's
House
House difference from:
Enacted 1/
Request
Floor 2/
Enacted
Request
Major Programs
BA
OL
BA
OL
BA
OL
BA
OL
BA
OL
Department of Health and Human Services
Social Security:
Limitation on administrative expenses
2,220
2,473
2,512
292
39
Total, Department of Health and Human
Services Social Security
2,220
2,473
2,512
292
39
Department of Labor:
Training and employment services
4,079
3,897
4,052
4,074
4,138
4,056
58
-158
88
-18
State unemployment Insurance and
employment services.
25
25
25
24
23
23
-2
-1
-1
-0
Unemployment trust fund
3,138
3,122
3,322
3,403
3,532
3,467
394
345
210
3
SENT BY:Xerox Telecopier 7020 7-11-91 11:43AM
Occupational Safety and Health Administration
285
279
302
296
302
296
17
17
Community service en playment for older
Americans
390
360
343
380
390
388
0
28
48
9
Other
924
979
1,042
1,077
1,008
1,049
84
70
-34
-29
Total, Department of Labor
6,843
8,661
9,065
9,254
9,394
9,278
551
617
309
25
Corporation for Public Broadcasting
299
299
327
327
327
327
28
28
All other
854
852
802
800
873
879
19
27
71
79
Total, Domestic Discretionary
56,214
54,132
55,972
57,383
59,412
58,422
3,198
4,290
3,440
1,039
INTERNATIONAL DISCRETIONARY:
United States Institute of Peace
8
9
9
9
8
8
0
-0
-1
-1
2023953174-
Total, International Discretionary
B
9
9
9
8
8
0
-0
-1
-1
TOTAL, DISCRETIONARY
58,222
54,141
55,961
57,392
59,420
58,430
3,198
4,290
3,439
1,038
602(b) Allocations:
BA
OL
Domestic Discretionary
59,275
57,800
International Discretionary
9
9
Note: Detail may not add to totals due to rounding.
1/ FY 1991 Enacted includes credit reform adjustments for comparability with FY 1992.
2/ Based on preliminary OMB ecoring of the House bill.
2024582397:#13
SENT BY:Xerox Telecopier 7020 ; 7-11-91 :11:44AM ;
2023953174-
2024562397;#14
CBO ESTIMATES COMPARED TO OMB ESTIMATES
LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION
APPROPRIATIONS BILL, FY 1992
10-Jul-91
(IN MILLIONS OF DOLLARS)
12:53 PM
House
Floor
BA
OL
CBO ESTIMATE,
DOMESTIC DISCRETIONARY SPENDING 1/
58,506
57,796
Scorekeeping Adjustments:
Department of Labor:
Employment and Training Administration: Unemployment
trust fund
76
As stated in the Budget Enforcement Act (BEA), appropriations contingent
on the fulfillment of some action by the Executive branch or some other
event normally estimated, new budget authority will be scored with the
appropriation. OMB's scoring of the contingency takes into account the
budget authority required to fund the standard error In the Department of
Labor's technical estimates of average weekly uninsured employment.
Employment and Training Administration: Program adminstration,
Training and employment services, and Community service
employment for older Americans.
26
Spendout rate difference.
Department of Health and Human Services:
Health Care Financing Administration: Program management
157
109
The House bill increases the President's requested Medicare contractor
contingency level from $100 M to $257 M. OMB scores the full contingency
amount as BA, consistent with the BEA requirement. Language contained
In the House bill eases the availability of contingency funds by
permitting their use for any "unanticipated costs," not just for
"unanticipated workload" Increases. OMB scores outlays of $109 M
resulting from an assumed obligation level of $125 M for
the contingency level of $257 M.
Family Support Administration(FSA): Low income home energy
assistance program (LIHEAP)
600
As stated in the BEA, appropriations contingent on the
fulfillment of some action by the Executive Branch or some other
event normally estimated, new budget authority will be scored with the
appropriation. OMB scores the full contigency amount as BA, consistent
with the BEA. OMB does not score the appropriation as an emergency
requirement. OMB would not recommend designation of any of these
funds as an "emergency" since the requirements for the program can be
reasonably estimated in advance.
FSA: Low income home energy assistance program
63
Spendout rate difference
FSA: Interim assistance to States for legalization
117
Spendout rate difference
SENT BY:Xerox Telecopier 7020 ; 7-11-91 11:45AM ;
2023953174-
2024562397:#15
CBO ESTIMATES COMPARED TO OMB ESTIMATES
LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION
APPROPRIATIONS BILL, FY 1992
10-Jul-91
(IN MILLIONS OF DOLLARS)
12:53 PM
House
Floor
BA
OL
Department of Health and Human Services (cont'd):
National Institutes of Health: Buildings and facilities
35
Spendout rate difference
Social Security Administration: Supplemental security Income
program
50
The FY 1992 President's Budget includes a $50 M contingency for
this account. The House bill provides a $100 M contingency
fund for use "only to the extent necessary to process workloads
not anticipated in the budget estimates..." OMB scores the
contingency consistent with the President's Budget and the
BEA requirement.
Health Resources and Services Administration: Health education
assistance loans programs
1
1
CBO gives the Appropriations Committee credit for reducing the
loan level below the baseline.
Railroad Retirement Board: Federal windfall subsidy
21
15
CBO scores the base appropriation for this account $18 M lower than
OMB. CBO believes that $18 M of the total appropriation becomes
available under section 224(c)(1)(B) of P.L. 98-76. OMB scores the
$18 million as discretionary because the windfall benefit taxes are a
a result of Congress' appropriation to this discretionary account
CBO scores $9 M in estimated interest earnings to this account.
OMB scores estimated interest earnings of $12 million, $3 M higher
than CBO.
Other Outlay Spendout Rate Differences (net)
-68
Less CBO Budget Resolution Adjustment
328
TOTAL SCOREKEEPING ADJUSTMENTS
905
626
OMB ESTIMATE,
DOMESTIC DISCRETIONARY SPENDING 2/
59,412
58,422
HOUSE 602(b) ALLOCATION
69,275
57,800
SENATE 602(b) ALLOCATION
59,275
57,800
Difference between OMB estimate and House 502(b) ellocation
137
622
Note: Detail may not add to totals due to rounding.
CBO's estimates based on CBO bill run dated 6/26/91.
2/ Based on OMB's preliminary scoring of the House-passed bill.
Tatle X Votes
Governor,
we still have 43
)
Support Regulations/Will Support Veto
-
149
votes to check on
but ,Eve alreach
Allard
Annunzio
have enough to
Applegate
Archer
support the Prendent GB
Armey
7/11
Baker
Ballenger
Barnard
Barton
Bennett
Bevill
Bilirakis
Bliley
Boehner
Bunning
Burton
Byron
Callahan
Camp
Combest
Costello
Cox
Crane
Cunningham
Dannemeyer
Davis
DeLay
Donnelly
Doolittle
Dornan
Dreier
Edwards, Mickey
Emerson
Ewing
Fields
Gallegly
Gaydos
Gilmor
Gingrich
Goodling
Goss
Hall, Tony
Hall, Ralph
Hammerschmidt
Hancock
Hansen
Hastert
Hayes
Hefley
Henry
Herger
Holloway
Hopkins
Huckaby
Hunter
Hutto
Hyde
Inhofe
Ireland
James
Johnson, Sam
Kanjorski
Kasich
Kildee
Kolter
Kyl
LaFalce
Lagomarsino
Lightfoot
Lipinski
Livingston
Lowery
Luken
Manton
Marlenee
Martin
Mazzoli
McCandless
McCollum
McCrery
McDade
McEwen
McGrath
McMillan
McNulty
Michel
Miller, Clarence
Mollohan
Montgomery
Moorhead
Murphy
Murtha
Myers
Nowak
Oberstar
Orton
Oxley
Packard
Parker
Paxon
Peterson, Colin
Petri
Poshard
Pursell
Quillen
Ray
Rhodes
Rinaldo
Ritter
Roberts
Roe
Rogers
Rohrabacher
Ros-Lehtinen
Roth
Santorum
Sarpalius
Saxton
Schaefer
Sensenbrenner
Shaw
Shuster
Skelton
Slaughter, French
Smith, Chris
Smith, Robert
Solomon
Spence
Stearns
Stenholm
Stump
Sundquist
Tauzin
Taylor, Charles
Taylor, Gene
Thomas, Craig
Traxler
Vander Jagt
Volkmer
Vuchanovich
Walker
Walsh
Weber
Weldon
Wolf
Wylie
Yatron
Young, Don
Young, Bill
Opposed to Regs but Will Sustain Veto - 2
Clinger
Skeen
Pro-Lifers/Marginals Position Unknown - 43
Barrett
Bateman
Bentley
Bereuter
Bilbray
Bonior
Borski
Broomfield
Browder
Bruce
Coble
Coleman
de la Garza
Duncan
English
Fish
Grandy
Gunderson
Harris
Hertel
Johnson, Tim
Kleczka
Lent
Lewis, Tom
Lloyd
Mavroules
Moakley
Nussle
Ortiz
Penny
Perkins
Rahall
Riggs
Roemer
Rostenkowski
Russo
Schulze
Slattery
Smith, Lamar
Staggers
Stallings
Tallon
Thornton
Opposed to Regs, May Support Veto - 6
Fawell - voted against passage
Gekas
Gradison - voted against bill, leaning against veto
Nichols - voted against passage
Thomas, Bill - voted against bill
Zeliff - voted against bill
BAI91 .455
S.L.C.
AMENDMENT NO.
Calendar NO.
purpose: TO provide for a substitute amendment.
IN THE SENATE OF THE UNITED STATES--1020 cong., 1st sess.
S. 323
To require the Seorctary of Health and Human Services to ensure
that pregnant women receiving assistance under title X of the
Public Health Service Act are provided with information and
counseling regarding their pregnancies, and for other purposes.
Referred to the committee on
and
ordered to be printed
ordered to lie on the table and to be printed
Amendment In the Nature of a Substitute intended to be proposed
by Mr. Durenberger
Yiz:
1
Strike out all after the enacting clause and Insert in
2 lieu thereof the following:
3 SECTION 1. REQUIREMENTS FOR FAMILY PLANNING PROJECTS
4
RECEIVING TITLE X FUNDING.
5
Title X of the Public Health Service Act (42 U.S.C. 300
6 et seq.) is amended by adding at the end thereof the
7 following new section:
8 "SEC. 9390. REQUIREMENTS FOR FAMILY PLANNING PROJECTS.
9
(a) In General. Notwithstanding any other provision of
BAI91 .455
S.L.C.
2
1 law, à project receiving assistance for family planning
2 services under this title shall--
3
..(9) provide medical services related to family
4
planning, including physician's consultation,
5
examination, prescription, and continuing supervision,
6
laboratory examination, contraceptive supplies,
7
(2) make necessary referrals to other medical
8
facilities when such ceferrals are medically indicated;
9
(3) provide for the effective usage of
10
contraceptive devices and practices,
11
**(4) provide for social services referral, including
12
counseling, referral to and from other social and medical
13
service providers, and other ancillary service providers;
14
(5) ensure that family planning medical services
15
will be performed under the direction of a physician with
16
special training or experience in family planning;
17
(6) provide for the coordination and use of
18
referral arrangements with other providers of health care
19
services, local health and welfare departments,
20
hospitals, voluntary agencies, and health service
21
providers supported by other Federal programs;
22
``(7) ensure that upon the diagnosis of a pregnancy
23
in a client of the project, such client will be provided
24
with a list, in accordance with subsection (b), of
25
prenatal care providers which offer services to 104-
BAI91 .455
S.L.C.
3
1
Income persons in the area in which such client resides;
2
(3) provide information to a pregnant client
3
concerning health care until such time as the client
4
attends a prenatal care referral appointment concerning
5
the pregnancy; and
5
(9) provide for emergency medical referrals, as
7
determined to be necessary, for pregnant Clients and for
8
other social service referrals.
9
(b) List of Providers.- A list provided in accordance
10 with subsection (a)(7) shall include hospitals and other
11 sites in which abortions are performed, 1f--
12
(1) such hospitals and sites are also mejor
13
providers of prenatal care; and
14
(2) a referral is to be specifically made for such
15
prenatal care services.
16
(c) Definition. As used in this section:
17
(1) Family planning.--
18
(A) In general.----The term *family planning'
19
means the process of establishing objectives
20
concerning the decision of an individual to have
21
children, the number of such children, and the
22
spacing of such children and selecting the means by
23
which such objectives may be achieved. The reans of
24
achieving such objectives may include a broad cange
25
of acceptable and effective methods and services to
BAI91 ,455
S.L.C.
4
1
limit or enhance fertility, including contraceptive
2
methods (such as natural family planning and
3
abstinence) and the management of infertility (such
4
as adoption options):
5
(B) Services.--Servies that may be provided in
5
accordance with the definition under subparagraph (A)
7
include preconceptional counseling, education, and
8
general reproductive health care (including diagnosis
9
and treatment of infections that threaten
18
reproductive capability).
11
(c) Limitation.- Servies that may not be
12
provided in accordance with the definition under
13
subparagraph (A) include--
14
(1) pregnancy care services (including
15
obstetric or prenatal cate), and
16
''(11) as required under section 1003,
17
abortions performed as a method of family
18
planning.
19
""(D) Construction. The definition of 'family
26
planning' under this paragraph shall be construed so
21
as to reduce the incidence of abortion.
22
(2) Prenatal care.-The term "prenatal care' means
23
medical services provided to a pregnant woman to promote
24
maternal and fetal health.
25
(3) Project.--The Lerm 'project' means an entity
BAI91 .455
S.L.C.
5
1
that provides family planning services with funds
2
received under this title.
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
01a. Memo
From Brian Waidmann to John Sununu
6/19/91
P/5
Re: Legislative Developments on the Family Planning Bill
(1 pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff, White House Office of
Open on Expiration of PRA
Series:
Sununu, John, Files
(Document Follows)
Subseries:
Issues Files
By
If
(NLGB)
10/28/05
on
WHORM Cat.:
File Location:
Right to Life / Abortion 1991 [4]: Title X
Date Closed:
1/5/2005
OA/ID Number:
29170-004
FOIA/SYS Case #:
1998-0004-F[2]
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
pen: Mc Clure wk of 7-8
Setting
JHS
THE WHITE HOUSE
upper
WASHINGTON
K
AC/ER
June 19, 1991
THE CHIEF of STAFF
MEMORANDUM FOR JOHN H. SUNUNU
has seen
THROUGH:
Fred McClure for
11:45 7/10
of
FROM:
Brian Waidmann 7054
Sue
SUBJECT:
Legislative Developments on the Family
Planning Bill
President Bush signed a letter saying he would veto legislation
changing current federal abortion policy, including legislation
that weakens the family planning regulations recently upheld by
the Supreme Court.
We are working to keep veto strength in the Senate. You should
know about one new development that could affect veto strength.
The legislation approved by the Senator Labor committee requires
family planning clinics to provide non-directive abortion
counselling. Nearly all Senators who usually vote pro-life
oppose this mandatory provision. Several add, however, that
making abortion information optional at the discretion of the
clinic could get their support.
Pro-choice Senators are considering this change. If they accept
it, we could fall short of the necessary 34 votes in the Senate.
This is especially true in light of the intense lobbying campaign
being waged by Planned Parenthood and others who are
characterizing this as a free speech issue.
This change has surface appeal. While it could be argued that
the change improves the bill, the fact remains that it could
substantially affect the HHS' proposed family regulations.
This will be the key issue during the coming debate on the family
planning bill. I recommend that you soon convene a meeting with
officials from counsel's office, Justice Department and HHS to
discuss this issue and decide legislative strategy. I will work
11
with Fred McClure to set up the meeting.
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
01b. Memo
From Sue Auther to Jackie Kennedy
7/3/91
Re: Wednesday, July 10 Meeting (1 pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff, White House Office of
Open on Expiration of PRA
Series:
Sununu, John, Files
(Document Follows)
Subseries:
Issues Files
By SP (NLGB) on 10/28/05
WHORM Cat.:
File Location:
Right to Life / Abortion 1991 [4]: Title X
Date Closed:
1/5/2005
OA/ID Number:
29170-004
FOIA/SYS Case #:
1998-0004-F[2]
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
SENT BY:Xerox Telecopier 7020 ; 7- 3-91 ; 10:06 ;
2024566221-
2024562397:# 1
July 3, 1991
MEMORANDUM FOR JACKIE KENNEDY
FROM:
Sue Auther
SUBJECT:
Wednesday, July 10. 11:00 a.m. meeting
The following individuals will be attending the Family Planning
Bill meeting:
Fred McClure
Boyden Gray
Lee Liberman
Gary Andres
Brian Waidmann
John Roberts (Deputy Solicitor General, Department of Justice
Mike Astrue (General Counsel, HHS)
Dr. William Archer (HHS staffer, in charge of family planning
programs dealing with population)
I have cleared the three agency folks in for the meeting.
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
02a. Memo
From Chris Smith to John Sununu
5/29/91
P-5
Re: Attached Paper on Congressional Pro-Life Issues (1 pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff, White House Office of
Open on Expiration of PRA
(Document Follows)
Series:
Sununu, John, Files
Issues Files
By
Subseries:
of
(NLGB)
on
10/28/05
WHORM Cat.:
File Location:
Right to Life / Abortion 1991 [4]: Title X
Date Closed:
1/5/2005
OA/ID Number:
29170-004
FOIA/SYS Case #:
1998-0004-F[2]
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
MAY-29-91 WED 11:41
P.01
THE CHIEF of STAFF
has seen
TO:
Governor Sununu
FROM: Chris Smith
Here is the memo I promised outlining the major pro-life congressional
issues with which we are dealing this year. We are sending this memo to
Gary Andres as well, since he requested such a rundown.
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
02b. Paper
Congressional Pro-Life Issues (16 pp.)
5/29/91
P/5
Collection:
Record Group:
Bush Presidential Records
Open on Expiration of PRA
Office:
Chief of Staff, White House Office of
(Document Follows)
Series:
Sununu, John, Files
By
If
(NLGB)
on
10/28/05
Subseries:
Issues Files
WHORM Cat.:
File Location:
Right to Life / Abortion 1991 [4]: Title X
Date Closed:
1/5/2005
OA/ID Number:
29170-004
FOIA/SYS Case #:
1998-0004-F[2]
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
P.RM. Removed as a personal record misfile.
P.02
MAY-29-91
WED
11:41
CONFIDENTIAL *** CONFIDENTIAL *** CONFIDENTIAL
May 29, 1991
INTRODUCTION
In 1989, the President vetoed four bills to prevent weakening of existing
pro-life policies (Labor/HHS, foreign operations, and DC twice). During
1990, it was not necessary for the President to employ his veto in defense of
pro-life policies, because all pro-abortion amendments were defeated in one
fashion or another.
During 1991, it will probably again be necessary for the President to use
his veto to block pro-abortion legislation, due in part to the departure of
pro-life stalwarts Humphrey and Armstrong from the Senate, and an eight-seat
shift in the House in the 1990 election.
We believe that the President's veto will be sustained on any issue which is
properly defined by the White House as an abortion issue.
However, the need for vetoes can be reduced by early assistance from the
White House (and from various Executive Branch agencies) in framing specific
issues before congressional votes occur. For example, the President's June
26, 1990 letter promising to veto any foreign aid bill that weakened the
Mexico City Policy or Kemp-Kasten anti-coercion law played a key role in
framing that issue and in the eventual defeat of the pro-abortion amendments
in Congress. On the other hand, the lack of such a letter prior to the May
22, 1991 vote on the AuCoin Amendment, inhibited the ability of pro-life
House members to convince marginal members that a vote for AuCoin would be
perceived as a vote for "abortion on demand throughout pregnancy" (although
in substance it was just that).
2
Title 10 Regulations
4
"Freedom of Choice Act"
5
Rep. Levine's "Freedom of Access to Clinic Entrances Act"
6
Parental Notification for Abortion
7
Pro-life Policies That Govern the AID "Population Assistance" Program
7
Mexico City Policy
9
Kemp-Kasten Anti-Coercion Law
11
Department of Defense
11 Medicaid Abortions-- Hyde Amendment-- Labor/HHS Appropriations Bill
13 Funding of Abortions in the District of Columbia
14 Legislation Dealing with the RU 486 Abortion Pill
Wyden Bill (HR 875) to Overturn the FDA Import Ban
Product Liability Fairness Act (S. 640)
15
Fetal Tissue Transplantation-- N.I.H. Bill
16
Legal Services Corporation
P.03
MAY-29-91 WED 11:42
May 29, 1991, confidential memo on upcoming abortion issues: 2
TITLE 10 FAMILY PLANNING PROGRAM-- PRO-LIFE REGULATIONS
The May 23 Supreme Court decision in Rust V. Sullivan represents a major
advance in de-legitimizing abortion as a method of family planning. The
Court upheld regulations that erect a "wall of separation" between abortion
and federally funded contraceptive programs.
Lopsided majorities of the public oppose the use of abortion as a method of
birth control. Thus, to the extent that the issue is framed as intended to
discourage the promotion of abortion as a birth-control method, it resonates
favorably with a majority of the public. Of course, the opposition and much
of the press will insist that it is an issue of free speech and equal access
to "medical care."
The Planned Parenthood Federation of America (PPFA), NARAL, and their allies
first intend to invest massive resources in an all-out campaign to seek
enactment of legislation (probably a Title 10 reauthorization bill) that
would overturn the pro-life regulations-- within 60 days.
This campaign
will be led by Rep. Waxman and Senators Kennedy and Chafee.
"We are poised and ready to get out a massive advertising campaign with a much
higher intensity than we have ever done before," PPFA President Faye
Wattleton told The New York Times. The newspaper added that "the campaign
would be directed particularly at members of Congress in their home
districts, calls." she said, and would include waves of letter-writing and telephone
The pro-abortion coalition believes that if they can generate enough
pressure on the Title 10 issue, some pro-life Members of Congress may panic
and go entirely over to the pro-abortion side. That would make it easier
policies. for the pro-abortion forces to pass other bills to repeal existing pro-life
* It is important that appropriate Administration officials step forward
to accurately explain the purpose and effect of the regulations, e.g., to
end government-sponsored promotion of abortion as a "family planning
option". Failure to do so will enhance PPFA's ability to frame this as a
First Amendment issue. DHHS Secretary Sullivan chose not to participate in
a May 28 debate on the issue on the MacNeil/Lehrer Report, and lower-ranking
officials familiar with the issue were not permitted to go on to defend the
regulations.
* The President should immediately state flatly that he will veto any
language to undermine the pro-life Title 10 regulations, whatever the
vehicle. That will help lock up some soft pro-life Republican votes early
on.
* The Administration should actively get behind efforts by pro-life
congressional leaders to attach a strong parental notification law to the
Waxman-Kennedy bill. (See below.) This issue cuts strongly against the
pro-abortion lobby.
MAY-29-91 WED 11:42
May 29, 1991, confidential memo on upcoming abortion issues: 3
Judging from the May 22 House roll call on the AuCoin Amendment, the Waxman
bill will likely pass the House, but with early assistance from the White
House, the margin should be well short of two-thirds.
On Sept. 25, 1990, the Senate adopted a similar Chafee amendment by a vote
of 62 to 36 (the 62 included at least two votes that are recoverable), but
the vehicle (Title 10) then died when Sen. Hatch led other Republicans in
opposing cloture (which failed 50-46). Senator Hatch's active leadership
will be essential to blocking the Waxman-Kennedy-Chafee effort.
Pro-regulation talking points include:
-- The Waxman-Kennedy-Chafee bill should be rejected because it would
require the federal government to promote abortion as a birth-control
"option." Most Americans oppose the use of abortion as a method of birth
control.
-- Although abortion remains legal, abortion is not simply another "medical
service." Every abortion stops a beating heart. Abortion is not a medical
benefit but a social evil, and the government can recognize this by seeking
to discourage abortion, even while abortion remains legal. By the same
token, cigarettes and assault weapons are generally legal, but the
government is not required to promote these things.
-- The Waxman-Kennedy-Chafee bill should be rejected because the
regulations do not interfere with constitutional free-speech rights,
according to the U.S. Supreme Court. Rather, the regulations merely
reflect the laudable government policy of favoring childbirth and
discouraging abortion.
-- The regulations explicitly provide that if a woman shows up at a Title
10 clinic with a life-endangering condition, such as an ectopic (tubal)
pregnancy, the Title 10 project is required "to refer the client
immediately to an appropriate provider of emergency medical services."
[Sec. 59.8(a)(2) and (b) (2)] The Supreme Court rejected a claim by
Planned Parenthood that the regulations would prohibit referral of "a woman
whose pregnancy places her life in imminent peril," citing these two
subsections of the regulations.
MAY-29-91 WED 11:43
P.05
May 29, 1991, confidential memo on upcoming abortion issues:
4
"FREEDOM OF CHOICE ACT" (HR 25, S. 25)
The so-called "Freedom of Choice Act" (HR 25, S. 25) has become the major
political "litmus test" for NARAL and some other pro-abortion groups. Pro-
abortion Congressman Mike Kopetski (D-Or.), a member of the House Judiciary
Civil and Constitutional Rights Subcommittee and a co-sponsor of the FOCA, said
May 22 on the House floor that the bill would be debated "before this House
chamber in just a few months." It is doubtful that this statement reflects
Speaker Foley's timetable, but it does appear that some pro-abortion leaders
are eager to bring this legislation to the floor during this Congress.
Even if the actual vote is delayed until next year, the pro-abortion groups
will try to exploit the Rust ruling to build support for the FOCA during the
next few months.
One essential element of the pro-abortion strategy is to "market" the FOCA as "a
simple codification of Roe V. Wade." Of course, a bill to codify Roe, if it
could be formulated, would be a very bad bill. But the FOCA goes much further,
and would invalidate many abortion laws that survived under Roe V. Wade, such as
parental notification laws.
It is very important, therefore, that pro-life forces immediately challenge
any press story or editorial that inaccurately characterizes the bill as
incorporating the standards of Roe. Please refer to the attached material
quoting the ACLU, Congressman Edwards (the prime sponsor of the FOCA), and
other sources to demonstrate that the bill would invalidate virtually any
restrictions on abortion at any stage in pregnancy, including all parental
notice and consent laws.
Because the FOCA incorporates a national abortion policy that is in
actuality far more permissive than that favored by the majority of
Americans, the pro-abortion push for congressional action on this bill
provides pro-life forces and the Administration with an opportunity to re-
frame the abortion debate. Rather than just responding to attacks on rape,
incest, and free speech, we should all be pointing to this bill as the
embodiment of the real agenda of the "pro-choice" movement-- abortion on
demand throughout pregnancy, with government funding and mandatory
participation by health-care providers.
MAY-29-91
WED
11:44
P.06
May 29, 1991, confidential memo on upcoming abortion issues:
5
LEVINE BILL (HR 1703) CONGRESSIONAL ENDORSEMENT OF
A FEDERAL CONSTITUTIONAL RIGHT TO ABORTION
H.R. 1703, the "Freedom of Access to Clinic Entrances Act of 1991," was
introduced by Rep. Mel Levine (D-Ca.) on April 10, 1991. On the same day, Mr.
Levine inserted a speech in the the Congressional Record explaining the legal
and policy rationales for the bill.
Under H.R. 1703, a person who "intentionally prevents an individual from
entering or exiting" a "medical facility," by "detaining the individual" or
by "obstructing, impeding, or hindering the individual's passage," is guilty
of a federal felony, punishable by imprisonment of up to three years and
fines of up to $250,000. In addition, "any person aggrieved by a violation"
would be granted a private cause of action, and would be able to collect
damages and attorneys' fees.
NRLC supports only lawful, peaceful activities in defense of innocent human
life. However, enactment of the Levine bill would be a congressional
endorsement of a federal constitutional right to abortion. Presumably, Mr.
Levine hopes that a congressional endorsement of Roe would influence future
cases in which the Supreme Court or lower federal courts review restrictions
on abortion.
Mr. Levine's intent is clear. His language would be inserted in the section of
the U.S. code that deals with criminal penalties for violations of federal
constitutional rights (e.g., the right to vote). His April 10 speech-- which
would be an important part of the "legislative history" of H.R. 1703 if it is
enacted-- appeared under the headline, "ABORTION IS A CONSTITUTIONALLY PROTECTED
RIGHT IN THIS COUNTRY." In the speech, Mr. Levine stated:
[E]very day opponents of abortion and family planning gather for
the express purpose of intimidating and harassing women trying to see
their doctor and to deny women their constitutionally guaranteed right
to reproductive choice. [...] Traditionally, Federal criminal
sanctions have been imposed, in addition to any State sanctions, where
important Federal rights are involved
The precedent for this remedy
is clear. First, the issue involves rights protected by the Federal
Constitution: the right to freedom of choice.
NRLC strongly opposes HR 1703 or any other measure that would place Congress on
record as supporting Roe V. Wade.
MAY-29-91 WED 11:44
P.07
May 29, 1991, confidential memo on upcoming abortion issues: 6
PARENTAL NOTIFICATION FOR ABORTION
About 12% of all abortions are performed on girls age 17 and under. Often,
such abortions are performed on minors without any notification to, or consent
by, either parent.
The federal government should not fund agencies that provide abortions to
minor girls in secret. Parents have the right to know when their child
undergoes a surgical procedure as serious as an abortion. Young girls need
guidance from their parents before they make life-changing decisions, such
as whether or not to have an abortion.
Congressmen Chris Smith (R-NJ) and Alan Mollohan (D-WV), co-chairmen of the
Congressional Pro-Life Caucus, have introduced the Family Unity and Parental
Notification Act (HR 1490). (Senator Coats intends to introduce a very
similar measure.) This bill would require organizations that receive
federal DHHS funds' to notify one parent 48 hours before performing an
abortion on a girl aged 17 or younger. The bill would not apply in states
that already have laws in effect requiring parental consent or parental
notification for abortion, or in certain exceptional cases.
A version of this bill will be offered as an amendment to legislation to
reauthorize Title 10 (see above).
The Supreme Court has repeatedly upheld the constitutionality of parental
notification and consent laws, most recently in 1990. (However, the "Freedom of
Choice Act" would invalidate all laws requiring parental notification or consent
for abortion, including those explicitly upheld by the Supreme Court under Roe.
See above.)
Public Opinion
There is overwhelming public support for laws to require abortionists to notify
at least one parent before performing an abortion on a minor. For example, a
1989 New York Times poll found 83% support for mandatory notification of "at
least one parent."
1990 Senate action on parental notification
During 1990, the Senate twice approved amendments, sponsored by now-retired Sen.
William Armstrong (R-Co.), to require notification of one parent 48 hours prior
to performance of an abortion on a minor daughter. The Armstrong amendments
were very similar to the Smith-Mollohan bill.
The Armstrong proposal was first offered to a bill (1989-90 number S. 110) to
reauthorize Title 10 of the Public Health Service Act, on Sept. 26, 1990. The
amendment was adopted after surviving a procedural challenge, 54 to 43, but S.
110 then died without Senate passage. On Oct. 12, Armstrong offered a similar
amendment to the Fiscal Year 1991 DHHS appropriations bill. After heated
debate, the amendment was adopted after surviving a tabling motion on a 48-
48 tie. However, it was dropped in conference committee, without a vote by
the House. If the Smith-Mollohan bill is modified to include a "bypass"
procedure for cases of child abuse, such as incest (as is under discussion
among pro-life leaders), a majority might be mustered in the current Senate
for the Smith-Mollohan-Coats measure.
MAY-29-91 WED 11:45
P.08
May 29, 1991, confidential memo on upcoming abortion issues: 7
PRO-LIFE POLICIES THAT GOVERN THE AID "POPULATION ASSISTANCE" PROGRAM
The U.S. currently provides about $330 million/yr., in several accounts
administered by the U.S. Agency for International Development (USAID), for
"population assistance" programs in less-developed nations. These funds
are currently governed by two major pro-life policies: (1) the Reagan-Bush
"Mexico City Policy," and (2) the Kemp-Kasten anti-coercion law. Both of
these policies are currently under attack by a coalition of "abortion
rights," population-control, and environmental organizations.
NRLC neither supports nor opposes "population assistance" funding, so long
as distribution of the funds continues to be governed by the undiluted
Mexico City Policy and Kemp-Kasten law.
The Mexico City Policy
NRLC regards the Mexico City Policy as perhaps the most important single
pro-life policy in effect at the federal level.
The policy provides that private organizations that campaign to legalize
abortion in foreign countries, or that otherwise promote abortion (other
than in cases of life of mother, rape, and incest) are ineligible for
population assistance funds. The key here is that the policy is an
eligibility criterion. A recipient organization may not promote abortion
even with funds from non-U.S. sources. Prior to adoption of the policy,
private organizations that received from 25% to 90% of their annual budgets
from USAID were also able to perform and aggressively promote abortion in
Third World nations, simply by 'segregating' the U.S. funds from the direct
cost of the abortion procedures in their bookkeeping.
Opponents, led by the Planned Parenthood Federation of America (PPFA), claim
that it has crippled delivery of contraceptive services. In fact, the
policy has only crippled PPFA's ability to promote abortion, since in many
Third World nations, local family-planning associations are no longer
responsive to PPFA pressure to promote abortion (since to do so would cost
them their AID funds).
PPFA has taken the position that "reproductive rights are indivisible," and
thus, has lost its AID funding. However, the policy has not reduced funding
for contraceptive services by $1. All funds removed from Planned Parenthood
have been re-programmed to other agencies that have agreed to stick to
contraception-- of which there are about 400.
In a June 26, 1990 letter to key members of Congress, President Bush made it
clear that he would use his veto power to prevent any weakening of the
Mexico City Policy.
Since 1985, the key battles on the Mexico City Policy and the Kemp-Kasten
Amendment have occurred on the foreign operations appropriations bill.
Beginning in 1989, Chairman Obey, although generally pro-abortion, has
consistently voted against all amendments to weaken either policy, on
pragmatic grounds that inclusion of pro-abortion language achieves nothing
but getting his bill vetoed. When the President vetoed the bill in 1989 on
the UNFPA issue, Obey did not seek an override vote, but immediately dropped
the offensive provision and sent the President another bill.
MAY-29-91 WED 11:46
P.09
May 29, 1991, confidential memo on upcoming abortion issues: 8
On June 27, 1990, Obey provided crucial support for a Chris Smith-Henry Hyde
Amendment that struck language that would have undercut the Mexico City and
Kemp-Kasten policies.
This year, Obey will no doubt push for meetings, negotiations, and some sort
of "deal" on these issues. On the substance of the abortion policies, no
compromise is possible. All of the formulations put forward by Kostmayer,
Bill Green, Chet Atkins, et al, have the same effect-- to restore U.S.
funding to organizations that promote abortion (or even coercive abortion),
with various bookkeeping rules for cosmetic effect.
So far, the population-control groups have been able to have it both ways:
they concentrate their lobbying efforts on repeal of the anti-abortion
policies, but in the press they claim that the issue is family-planning
funding, which they imply that the Administration is opposed to, or has cut
back on. (See, for example, the May 9 op ed piece by Hobart Rowen in the
The Washington Post.) They have continued to make these claims even after
the President with no fuss signed the FY 1991 bill that contained a $60
million increase in aggregate population assistance (from about $270 to
about $330 million).
The President's pro-contraception position could be highlighted, and the
opposition's pro-abortion priorities spotlighted, if the Administration
established a linkage between these two issues. Right now, the population-
control/environmental coalition is pressing for an increase in aggregate
population assistance to $570 million. If the Administration tells Green,
Snowe, Obey et al that willingness to accept bills containing future
increases in population assistance is contingent on the continuing
application of the Mexico City and Kemp-Kasten policies, they and their
allies would be placed more on the defensive in justifying their campaign to
repeal the abortion restrictions.
In the Senate, Chairman Leahy is hostile to the pro-life policies and
sympathetic to funding increases. Last year, Sen. Wirth garnered 57 cloture
votes on an anti-MCP amendment.
In an annual ritual, the House Foreign Affairs Committee this month approved
amendments to the foreign aid authorization bill to overturn the MCP (the
Meyers Amendment) and to exempt the UNFPA from the Kemp-Kasten Amendment
(the Kostmayer Amendment). The Senate committee is likely to adopt similar
provisions. Of course, Sen. Helms is strongly committed to the pro-life
policies, and is in a position to impede the progress on the measure.
MAY-29-91 WED 11:47
P.10
May 29, 1991, confidential memo on upcoming abortion issues: 9
Kemp-Kasten Anti-Coercion Law
The Kemp-Kasten anti-coercion law, which is a part of the annual foreign
operations appropriations bill, denies U.S. population-control assistance to any
organization that "supports or participates in the management of a program of
coercive abortion or involuntary sterilization." Under this amendment, the
U.S. has withdrawn funding from the United Nations Population Fund (UNFPA),
based on determinations by the USAID that the UNFPA is deeply involved in
China's population control program, which systematically employs coerced
abortion. (The U.S. Court of Appeals for the District of Columbia in 1986
upheld USAID's determination that the UNFPA's extensive role in China violates
the law.)
The UNFPA has been a consistent and vigorous defender of China's population-
control policies. As UNFPA Executive Director Nafis Sadik put it on the CBS
Nightwatch program (Nov. 21, 1989), "The implementation of the [birth control]
policy [in China] and the acceptance of the policy is purely voluntary. There
is no such thing as, you know, a license to have a birth and so on."
There have been many attempts to understate the nature and the degree of the
UNFPA's involvement in China's program. For example, it is often alleged that
the UNFPA role in China is limited to "demographic statistics" or "research in
contraceptive technology." Even if these claims were true, it would not
ameliorate the fact that top officials of the UNFPA have vigorously defended
China's population program against all critics, or that the UNFPA points to
China as a model for other developing nations. But in fact, the UNFPA role is
far more extensive. After an in-depth review, USAID concluded in 1985 that "the
kind and quality of assistance provided by UNFPA contributed significantly to
China's ability to manage and implement a population program in which coercion
was pervasive,' and this remains the case.
Rep. Smith has received a May 23 letter from AID reporting that the FY 1991
funds originally earmarked for UNFPA had been re-programmed to other family
planning projects, "since there have been no significant changes either in
the nature of China's population program or in UNFPA's assistance to it that
would warrant the resumption of support for UNFPA."
All funds withdrawn from UNFPA since 1985 have been re-programmed to other
family planning agencies. Attached to the May 23 letter was a list of 15
population programs that will receive the $10 million in FY 1991 funds
originally budgeted for UNFPA. The largest grant on the list is a $2.5
million grant to the International Planned Parenthood Federation/Western
Hemisphere, a federation of Latin American family planning groups.
In 1989, President Bush vetoed the entire foreign operations assistance
bill, based in large part upon the inclusion of the Mikulski Amendment. (In
1990 a similar Mikulski Amendment was defeated when only 51 senators voted
to invoke cloture on the amendment.) in vetoing the Mikulski Amendment in
1989, President Bush said: "Unfortunately, the Congress has inserted in the
bill the so-called Mikulski Amendment, which would fatally weaken the
integrity of the Kemp-Kasten anti-coercion provision by earmarking funds for
the United Nations Fund, the only organization that has ever been determined
to violate that provision. The Fund participates in and strongly defends
the program of a particular foreign government which relies heavily upon
compulsory abortion. This fund has received no United States assistance
MAY-29-91 WED 11:47
P.11
May 29, 1991, confidential memo on upcoming abortion issues: 10
since 1985, precisely because of its involvement in this coercive abortion
policy. The current bill thus represents a radical and unwarranted change
in policy. The Mikulski Amendment is rendered no more acceptable by a
clause which requires the Fund to keep its books in a manner so as to
prevent the direct flow of United States assistance to the particular
foreign government. The current Kemp-Kasten law tells all family planning
organizations that they must refrain from supporting coercive programs, or
the United States will direct its resources to alternative organizations
which respect the fundamental principle of voluntariness. The bill would
negate this essential human rights principle through substitution of a
simple accounting requirement, and I find this unacceptable."
All of the President's 1989 statements logically should apply with equal
force to the Kostmayer Amendment (approved by the House Foreign Affairs
Committee earlier this month), which takes the same approach.
This year, Hatfield, Green, and the others will attempt to negotiate a
"compromise" with the White House. You can be sure that any so-called
"compromise" will amount to (1) continued UNFPA participation in China's
coercive program, along with (2) restored U.S. funding for the UNFPA-- the
very combination forbidden by the Kemp-Kasten anti-coercion law. Any such
proposal, however formulated, would directly contradict the unequivocal
position stated by the President in his November 19, 1989 veto message on
the Mikulski Amendment, and his June 26, 1990 letter opposing the Lehman
Amendment.
MAY-29-91
WED
11:48
P.12
May 29, 1991, confidential memo on upcoming abortion issues: 11
DEPARTMENT OF DEFENSE
A successful filibuster of the pro-abortion AuCoin-Wirth Amendment might be
mounted, with White House assistance. Otherwise, a veto will be necessary,
and would be sustained in either house. (See attached press releases.)
MEDICAID ABORTIONS--HYDE AMENDMENT--LABOR/HHS APPROPRIATIONS BILL
Until 1976, any abortion performed by a physician on a Medicaid-eligible client
was considered by definition to be "medically necessary," and therefore
automatically reimbursed by the federal government. Under this de facto
abortion-on-demand policy, the federal Medicaid program was paying for nearly
300,000 abortions annually. Since 1976, Congress has prohibited federal
Medicaid funding of almost all abortions through the "Hyde Amendment,' which
is a "rider" to the annual Department of Health and Human Services (DHHS)
appropriations bill. Since 1981, these bills have permitted federal funds
to be used only "where the life of the mother would be endangered if the
fetus were carried to term."
In 1989, Congress sent President Bush a DHMS appropriations bill that would
have expanded the circumstances under which federal Medicaid funds could be used
for abortions. The language approved by Congress (the "Boxer Amendment")
ostensibly would have provided federal funding of abortion in cases of rape and
incest. However, the Boxer Amendment was written so as to require federal
funding of abortion in cases in which minor females became pregnant, through
consensual sex, in violation of state "statutory rape" laws. Also, the Boxer
Amendment permitted an alleged assault to be reported to "a public health
service," which could be an abortion clinic or telephone counseling service, in
lieu of reporting to a law enforcement agency, and set no explicit time limit on
such reporting.
President Bush objected to the Boxer Amendment and vetoed the bill, for
reasons explained in a letter to Senator Hatfield dated Oct. 17, 1989. The
President's veto was upheld on Oct. 25, 1989, on a vote of 231 to override
to 191 to sustain-- 51 votes short of two-thirds.
During 1990, pro-life House Chairman Natcher employed procedural devices to
prevent the pro-abortion forces from obtaining a House vote on the
rape/incest language. Later, the Senate Appropriations Committee added the
rape/incest language. Pro-life forces responded on the Senate floor by
attaching to the rape/incest clause, an Armstrong amendment requiring DHHS-
funded organizations to provide parental notification for abortion. Rather
than provoke a politically painful confrontation on the parental
notification issue on the House floor, pro-abortion Senate Chairman Harkin
dropped the hybrid rape-incest-parental notification in conference.
This year, pro-abortion members of the House Appropriations Committee are
pressing to have the DHHS bill considered under a Rules Committee resolution
that would permit them a vote on the rape/incest amendment. Predictably,
Natcher will not go along with this; he prides himself on never seeking a
rule on his bill. The pro-abortion forces may retaliate by raising a point
of order (legislation on an appropriations bill) on the floor, which would
strike the entire Hyde Amendment from the bill. The Senate Committee can
be expected to restore the rape/incest version, which would also command a
substantial majority on the floor. The pro-life forces will again respond
MAY-29-91 WED 11:49
P.13
May 29, 1991, confidential memo on upcoming abortion issues: 12
by offering the parental notification proposal as an amendment to the
rape/incest language.
The White House could be most helpful in lobbying for the parental
notification measure, since it is winnable (the most recent vote, on Oct.
12, 1990, was a 48-48 tie). If the parental notice amendment is adopted,
it torpedoes the rape/incest clause. If it is defeated, if provides an
additional justification for a veto that is vastly more politically
attractive than the rape/incest issue alone. [E.G., "the President could
not sign the bill because the Congress weakened existing restrictions on the
use of tax funds for abortions, and rejected a requirement that federally
funded agencies notify one parent before performing an abortion on a minor.
The President does not feel that the federal government should subsidize
clinics that perform abortions on minors in secret, without the knowledge
of a parent.)
MAY-29-91 WED 11:49
P.14
May 29, 1991, confidential memo on upcoming abortion issues: 13
FUNDING OF ABORTION IN THE DISTRICT OF COLUMBIA
The entire District of Columbia budget, including so-called "local funds,"
is under federal control and is appropriated by Congress, in accord with
Article I of the Constitution, which gives Congress complete legislative
authority over all D.C. affairs. Until 1988, the city government used
congressionally appropriated "local" funds to pay for abortion on demand.
In 1988, Congress for the first time adopted an NRLC-backed amendment ending
government funding of abortions in D.C., except to save the life of the mother.
In 1989, Congress sent President Bush two bills that would have restored the
authority of the city government to pay for abortion on demand with so-called
"local" funds, and to fund abortions in cases of rape and incest with "federal"
funds. The President vetoed both bills, thereby preserving the pro-life policy.
As a result of the pro-life policy, the total number of abortions performed
annually in D.C. has dropped by about 1,000 a year. The number of
government-funded abortions had dropped from about 4,000 a year to 1.
In 1990, the Fiscal Year 1991 D.C. appropriations bill that emerged from
conference again contained language that would have restored tax-funded
abortion on demand in D.C. The House twice rejected the conference language
(Oct. 20 and Oct. 25, 1990). The conference committee then restored language
preserving the pro-life status quo.
We hear that Chairman Julian Dixon feels that he is compelled to again go
through the exercise of including the same old pro-abortion language in the
bill. However, if the House rejects the conference report once, he will
not force a second vote, we are told. Moreover, it seems unlikely that he
would force more than one veto, as he did in 1989.
The Washington Post and other critics of the President's pro-life policy
claim that it is a federal infringement on "home, rule" or "local funds." In
fact, however, as Marlin Fitzwater pointed out in 1989, all of the funds
involved are appropriated by Congress. For the President to sign a bill
that lifted the ban on "local funds" would be tantamount to signing a check
to pay for roughly 4,000 abortions a year.
As for "home rule," it is noteworthy that Julian Dixon, Norton, and other
critics of the pro-life policy do not really object in principle to Congress
"dictating" abortion policy to the District of Columbia. We know this
because they are all co-sponsors of the "Freedom of Choice Act" (see page
4), which would explicitly prohibit the D.C. city government (and all 50
state legislatures) from placing any limits on abortion.
MAY-29-91 WED 11:50
P.15
May 29, 1991, confidential memo on upcoming abortion issues: 14
LEGISLATION DEALING WITH THE RU 486 ABORTION PILL
Wyden bill (HR 875) to overturn FDA import ban
NRLC is strongly opposed to the use of RU 486 to induce abortions, whether
in research studies or otherwise. But NRLC has never objected to research
on RU 486 for purposes unrelated to abortion.
In June, 1989, the Food and Drug Administration (FDA) added the French abortion
pill, RU 486, to the list of drugs that may not be imported into the U.S. by
private individuals for personal use. RU 486 is not approved to be prescribed
for any purpose in the United States, and in the FDA's judgment the drug poses
substantial health risks unless it is taken as part of a carefully supervised
research program. This judgment is clearly well-founded. In France, even
under extraordinarily close medical supervision, there has been a reported
death, two near-fatal heart attacks, and serious complications in 5% of the
women who have used the RU 486 abortion technique. Recently, the French
government banned administration of the pill to any woman over age 35, or to
smokers of any age. Although the American Medical Association (AMA)
supports testing of RU 486 for abortion and other purposes, the AMA strongly
supported the FDA's import ban on RU 486.
Rep. Ron Wyden has introduced HR 875, which would nullify the FDA's import
ban. At present, the pro-abortion lobby is using this bill mostly as a
propaganda tool, telling the press that its passage is necessary in order to
lift a federal ban on "medical research" with RU 486. In reality, of
course, the personal import ban has nothing to do with medical research. As
the FDA has repeatedly stressed, there is no ban on medical research on RU
486, and indeed no restrictions on such research, other than the research
permit requirements that apply to all unapproved drugs.
It is not clear whether Wyden actually intends to try to move the pill
through the legislative process. If he did so, he would risk the sort of
debate that would reveal his phony equation of the import ban with a
research ban, and also the public-health grounds for maintaining the import
ban.
"Product Liability Fairness Act" (S. 640)
The proposed "Product Liability Fairness Act" (S. 640) would greatly weaken
barriers to the introduction of risky new abortion-inducing drugs in the
U.S., such as the French abortion pill, RU 486. NRLC opposes the bill
unless it is amended to preserve current law on such drugs. The House
Energy and Commerce Committee approved such an amendment (the "Tauke
Amendment") in 1988, but the bill never reached the House floor.
MAY-29-91 WED 11:51
P.
May 29, 1991, confidential memo on upcoming abortion issues: 15
FETAL TISSUE TRANSPLANTATION- N.I.H. BILL
Current DHHS policy prohibits NIH funding of transplantation into humans of
tissue obtained from induced abortions. This "moratorium" does not
prohibit research (including transplantation) on tissue obtained from
ectopic pregnancies or spontaneous abortions, or cell cultures begun from
such sources; NIH continues to fund these types of research (which are
supported by NRLC).
Title I of Rep. Waxman's "NIH Revitalization Amendments" (HR 2281,
originally HR 1532) would mandate federal funding of fetal-tissue
transplantation. At the May 7 subcommittee markup, this provision was
retained on a nearly partly line vote, and the bill itself was then approved
on a party-line vote. A similar pattern is expected in full committee,
where markup is tentatively scheduled for June 4.
Title I would also severely diminish the authority of the Secretary of DHHS
to block any form of human experimentation on ethical grounds. In testimony
before Mr. Waxman's Health Subcommittee on April 15, recently confirmed NIH
Director Bernadine Healy, M.D., said:
Under the title [Title I], this important responsibility would, in fact, be
taken from the Secretary and given to a review board, which would be an
intrusion on the authority of the Executive Branch. This could be a
dangerous precedent. As you know, [the] statute vests broad discretionary
authority in the Secretary to determine what kinds of research the
Department will or will not support; it is necessary to make these
decisions using a mix of scientific, social, policy, and ethical
considerations. The authority to define research funding policy should
remain under the purview of the Secretary, who has the broad-based
knowledge to make these decisions, as well as the ultimate responsibility
for the outcome of those decisions.
Dr. Healy's comments, while helpful, were somewhat off the mark in calling
Waxman's language a "precedent." Waxman is establishing not a precedent,
but a process, which will govern all future issues involving biomedical
research on human subjects. The mechanism that Waxman would create would
virtually guarantee that future decisions about federal funding of ethically
questionable human experimentation would be made by ad hoc committees
dominated by specialists in the specific research fields affected. Although
the Secretary of DHHS would appoint the committees, he must do so according
to criteria spelled out in the bill, under which it would be politically
very difficult to appoint a committee not dominated by "nominees" of the
professional societies with the greatest stake in any given line of
research. It is impossible to predict all of the issues to which such a
process might apply in the future, but not all would involve fetuses. Under
the Waxman bill, neither the Secretary nor the President could overrule the
vote of one of these elite ad hoc committees.
Congressman Lent questioned the constitutionality of this proposal at the
May 7 subcommittee markup, but on rather narrow "appointments clause"
grounds. This "separation of powers" attack should be expanded and
amplified throughout the legislative process, thereby laying the groundwork
for a veto (successfully sustained) separate and distinct from the merits of
the fetal-tissue moratorium.
MAY-29-91 WED 11:52
P.17
May 29, 1991, confidential memo on upcoming abortion issues: 16
LEGAL SERVICES CORPORATION
Agencies that receive funds from the federal Legal Services Corporation (LSC)
are currently prohibited by the LSC authorizing statute from using federal or
private funds to litigate to procure an abortion, except to save the mother's
life. In addition, a rider to the annual Commerce-Justice-State appropriations
bill prohibits the use of LSC funds "to participate in any litigation with
respect to abortion." However, some LSC grantees continue to utilize IOLTA
("Interest On Lawyers' Trust Accounts") funds for pro-abortion litigation.
NRLC supports language to prohibit any litigation or lobbying by LSC-funded
agencies, with funds from any source, including IOLTA funds, on either side
of the abortion issue. During subcommittee markup on Rep. Frank's LSC
reauthorization bill (HR 2039) on April 25, Rep. Gekas offered such an
"abortion-neutral, which was defeated 2-5. The same amendment will be
offered at subsequent stages in the legislative process. Unless the
amendment is included in the final bill, it should be vetoed, lest the LSC
network again become a legal-defense arm of the pro-abortion movement.
#######
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dyn DISTRICT. NEW JERSEY
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HEALTH AND HOSPITALS
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SELECT COMMITTEE ON AGING
TELECOPIER TRANSMISSION
THE CHIEF of STAFF
has seen
num
To:
Governor Sununu
Date: May 30
From: Congressman Chris Smith
Congressman Christopher H. Smith
Telecopier # (202) 225-7768
Transmission consists of this cover page and 4 additional pages
to follow.
If you do not receive all pages, or if there is a problem, please
contact the sender at (202) 225-3765.
I thought you would be interested in
seeing this "Dear Colleague" letter and fact sheet
that we Sent to pro-life and marginal Members
of the House today.
I will get you the comparison on the
foreign aid language as quickly as possible,
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Congress of the United States
House of Representatives
Blasspington, B.C. 20515
May 30, 1991
Dear Colleague:
On May 23, the U.S. Supreme Court upheld the constitutionality of federal regulations that seek
to ensure a Congressionally-mandated "wall of separation" between abortion and family planning.
Unfortunately, many media reports have trumpeted misleading charges by opponents of the
regulations about their actual scope and purpose. We have also heard many "the sky is falling" claims
that this decision will "cripple family planning services."
This campaign was carefully orchestrated by Planned Parenthood and other supporters of
abortion-on-demand well in advance of the Court's decision. A Planned Parenthood publication, "The
Title X Gag Rule--Winning No Matter What The Court Decides," lays out their strategy in considerable
detail.
Supporters of abortion-on-demand have already introduced legislation to overturn these common
sense regulations. Their principal argument is that the regulations violate "free speech" rights. We
believe that this argument and others are easily refuted when one takes the time to look at the facts.
The principal point to keep in mind when examining this issue is that Congress did not intend
for abortion to be treated as a method of family planning when it created the Title X program. The
legislative history is abundantly clear on this point.
Likewise, the American people are overwhelmingly opposed to the use of abortion as a method
of family planning. Details on polling data and other pertinent information are included in the attached
fact sheet. We urge you to take a few moments to review this information and please don't hesitate to
call on us if we can be of any further assistance.
Sincerely,
Cluin Smith
ALAN B. MOLLOHAN, M.C.
CHRISTOPHER H. SMITH, M.C.
HaHpe HENRY J. HYDE, M.C.
EARL HUTTO, M.C.
VIN WEBER, Faby M.C.
Barbara F. Sucanovich
BARBARA F. VUCANOVICH, M.C.
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Taxpayers Should Not Be Compelled
To Subsidize Abortion Advocacy
"None of the funds appropriated under this title
shall be used in programs where abortion is a
method of family planning."
--Section 1008 of Title X of the Public Health Service Act
(enacted by Congress in 1970)
"What is birth control? Is it an abortion?
Definitely not, an abortion kills the life of a
baby after it has begun...Birth control merely
postpones the beginning of life."
--Planned Parenthood, August 1963.
*
The language of the Title X statute makes it clear that abortion
is outside the scope of the program. "It is, and has been, the
intent of both Houses that funds authorized under this legislation
be used only to support preventive family planning services #
the 1970 Conference Report stated.
*
Only programs that receive Title X funds are governed by the
HHS regulations. They do not govern an organization's activities
outside the scope of its Title X program. The regulations limit
funding to programs which:
-- do not include abortion as a method of family
planning;
-- maintain physical and financial separation from
prohibited abortion activities;
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-- do not engage in any activities that encourage,
promote, or advocate abortion as a method of
family planning; and
- do not provide counseling and referral for
abortion.
The Supreme Court found that "the Secretary amply justified" the change in the
regulations with a "reasoned analysis." The Chief Justice, writing for the majority, stated:
"The Secretary explained that the regulations are a
result of his determination, in the wake of the
critical reports of the General Accounting Office
(GAO) and the Office of the Inspector General
(OIG), that prior policy failed to implement
properly the statute and that it was necessary to
provide 'clear and operational guidance to grantees
to preserve the distinction between Title X
programs and abortion as a method of family
planning." (Rust V. Sullivan, Majority Opinion,
p. 10)
In its previous Maher V. Roe decision, the Court held that government may "make a
value judgment favoring childbirth over abortion, and implement that judgment by the
allocation of public funds."
Likewise, in upholding the constitutionality of the Hyde Amendment in 1980 (Harris V.
McRae), the Court declared: "Abortion is inherently different from other medical procedures,
because no other procedure involves the purposeful termination of a potential life."
Opponents of the HHS regulations argue--incorrectly-that they deny "free speech" rights.
The Court addressed this issue directly:
"The Secretary's regulations do not force the Title X grantee to
give up abortion-related speech; they merely require that the
grantee keep such activities separate and distinct from Title X
activities. Title X expressly distinguishes between a Title X
grantee and a Title X project." (Rust V, Sullivan, pp.19-20)
The argument that the Government "unconstitutionally discriminates on the basis of
viewpoint" was also dismissed by the Court. That argument "would render numerous
government programs constitutionally suspect," the Court pointed out. "When Congress
established a National Endowment for Democracy to encourage other countries to adopt
democratic principles, it was not constitutionally required to fund a program to encourage
competing lines of political philosophy," the Justices explained.
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The Court also addressed the red herring claim that the regulations do not provide any
latitude for dealing with a medical emergency:
"Abortion counseling as a 'method of family planning' is
prohibited, and it does not seem that a medically necessitated
abortion in such circumstances would be the equivalent of its use
as a 'method of family planning.' Neither Section 1008 nor the
specific restrictions of the regulations would apply. Moreover, the
regulations themselves contemplate that a Title X project would be
permitted to engage in otherwise prohibited abortion-related
activity in such circumstances. Section 59.8(a)(2) provides a
specific exemption for emergency care and requires Title X
recipients 'to refer the client immediately to an appropriate
provider of emergency medical services.' 42 CFR 59.8(a)(2)
(1989). Section 59.5(b)(1) also requires Title X projects to
provide 'necessary referral to other medical facilities when
medically indicated." (Rust V. Sullivan, pp.18-19)
*
Prior to the 1988 HHS reforms, grantees were required to refer for abortions
as a condition of receiving federal funds. Since approximately one-third of all
Title X clients are adolescents and Title X has a "client confidentiality" policy,
Congress was subsidizing a program that referred unemancipated minors for
abortions without their parents' knowledge or consent.
*
It is hypocritical for opponents of the regulations to argue that they are
advocates of "free speech" when they would force conscientiously opposed
individuals to refer for abortions as a condition of receiving federal family
planning funds.
Public opinion polls have repeatedly demonstrated that Americans do not
support the provision of abortion "as a means of birth control." A March 1989
Boston Globe poll found 89% opposition to this practice and a survey conducted
by the Gallup Organization in May 1990 found 88% disapproval.
Planned Parenthood, a leading opponent of the regulations, has performed
more than a million abortions in its own facilities since 1980. (Their 1989
"Service Report" lists annual figures from 1980 through 1988. Assuming the
same abortion carnage in 1989 and 1990 as in 1988--a conservative estimate--the
figure is well over a million.) The yearly breakdown follows:
Year
Abortion Procedures
1988
111,189
1987
104,411
1986
98,638
1985
91,065
1984
88,824
1983
85,242
1982
82,916
1981
79,997
1980
77,880
JUN 03 '91 15:29 TO:4562397
FROM: FAMILY RESEARCH COUN T-260 P. 02
MEMORANDUM
TO:
Ed Rogers, Deputy Assistant to the President and
Executive Assistant to the Chief of Staff
FROM:
Elizabeth Kepley Law, Family Research Council
Michael Franc, Rep. Dannemeyer's Office
MF
RE:
Suggested Talking Points Regarding Administration
Position
DATE:
May 31, 1991
At the outset, please bear in mind that the President's
statement on Rust V. Sullivan will frame the debate on the
contested HHS regulations. Per our conversation and a meeting this
afternoon with Hill staff, NRLC, and other sympathetic groups, the
following are the fundamental points which we will use in defending
the Rust decision:
* The debate over Rust is about nothing less
than whether the federal government should
subsidize abortion as a method of family
planning.
* Abortion is not a method of birth control or
family planning. Polls indicate that the
opposition to abortion is greatest when it is
presented in this context;
* Federal funds should not be used to directly
or indirectly promote abortion or refer women
for abortions;
* When the Congress created the Title X
program, it envisioned a narrow program focused
exclusively on preconceptual and preventive
family planning services. The opposition
regards the Title X program as an all-
encompassing health facility for women, which
is contrary to the legislative history.
Neither clinic counselors nor facilities are
equipped to offer women extensive medical
advice (see final section of majority opinion
in Rust).
* Please note that the pro-abortion Members on
the Energy and Commerce Committee will distort
JUN 03 '91 15:29 TO:4562397
FROM: FAMILY RESEARCH COUN T-260 P.03
the meaning of Rust and draw analogies to
broader programs such as Medicare.
* It is to our advantage to emphasize how
narrow the Title X program is, and to keep it
focused on its original purpose.
CC
Brian Waidmann
Frances Norris
Leigh Ann Metzger
THE WHITE HOUSE
WASHINGTON
November 5, 1991
MEMORANDUM FOR THE SECRETARY OF HEALTH AND HUMAN SERVICES
Throughout the debate about the relationship of the Title
X family planning program and abortion counseling, some have
raised questions about the regulations dealing with services
offered to pregnant women.
We must ensure that the confidentiality of the
doctor/patient relationship will be preserved and that the
operation of the Title X family planning program is compatible
with free speech and the highest standards of medical care.
In order to clarify the purpose and intent of these
regulations, I am directing that in implementing these
regulations you ensure that the following principles, inherent
in the statute, are adhered to:
1.
Nothing in these regulations is to prevent a woman from
receiving complete medical information about her condition
from a physician.
2.
Title X projects are to provide necessary referrals to
appropriate health care facilities when medically
indicated.
3.
If a woman is found to be pregnant and to have a medical
problem, she should be referred for complete medical care,
even if the ultimate result may be the termination of her
pregnancy.
4.
Referrals may be made by Title X programs to full-service
health care providers that perform abortions, but not to
providers whose principal activity is providing abortion
services.
I am determined to assure the integrity of the Title X
program in its mission to provide family planning services to
low-income individuals; adherence to this guidance will produce
this result.
POSSIBLE AGREEMENT ON POLICY WITH RESPECT TO PREGNANCY
RELATED SERVICES IN TITLE X FUNDED CLINICS
(OCTOBER 25 , 1991)
A. Treatment of Title X projects which provide prenatal care,
such as, but not limited to, community health centers,
hospitals, or family planning clinics that offer such care:
When a woman comes in for family planning services and is
determined in the course of the visit to be pregnant, she should be offered
information regarding her pregnancy. The provider of services will
furnish a list of community resources for medical care and social
services which may include providers of pregnancy termination if they
also provide prenatal care. If the woman elects to remain in that project
for services, she will be provided with the same pregnancy related
services and information that all of the projects' patients receive. The
project would be allowed to retain Title X funds as part of its general
operating support. The Title X projects under Part A may use Title X funds
for all services that are allowable under Part B.
B. Treatment of Title X projects which do not provide prenatal
care:
(1) When a woman comes in for family planning services and is
determined in the course of the visit to be pregnant, she should be offered
information regarding her pregnancy. If she is found to have a significant
medical problem, she should be referred to a provider of comprehensive
medical care. The project will furnish a list of community resources for
medical care and social services which may include providers of
pregnancy termination if they also provide prenatal care. If requested, the
project will make every effort to assist the pregnant woman in making an
appointment with a prenatal care provider. In addition, the project will
provide the woman with written information to be developed by the
Secretary of Health and Human Services about appropriate prenatal care
that includes a discussion of proper nutrition and exercise, the need to
avoid alcohol, drug and tobacco use, and the importance of receiving
medical care.
(2) The project shall give factual answers to questions the woman has
about her pregnancy and her legal and medical options. Questions about an
individual's medical conditions that relate to her pregnancy should be
referred to an appropriate practitioner, on or off premises. Upon a
woman's request, identification of providers of adoption and pregnancy
termination services will be made available, including providers who do
not also provide prenatal care. Factual information may also be provided
about the mix of services provided by each provider and the payment
sources they accept. The project is not to provide directive counseling to
the woman regarding her pregnancy. Should this process of answering
questions be found to advocate pregnancy termination or adoption the
Title X project would be subject to the procedures which apply to misuse
of grant funds, including termination of the grant or portion of the grant
which funds the project.
(3) Nothing in this statute is intended to preclude a health care
professional or trained clinician under the supervision of a medical
director, from fulfilling his or her generally-accepted professional duty.
C. Relationship to Non-Title X Services:
Nothing in this statute is intended to circumscribe the services
offered by a recipient of Title X funds with other public or private funds.
Nothing in this statute is intended to address 42CFR59.9 (Feb. 2, 1988)
THE WHITE HOUSE
WASHINGTON
November 5, 1991
MEMORANDUM FOR THE SECRETARY OF HEALTH AND HUMAN SERVICES
Throughout the debate about the relationship of the Title
X family planning program and abortion counseling, some have
raised questions about the regulations dealing with services
offered to pregnant women.
We must ensure that the confidentiality of the
doctor/patient relationship will be preserved and that the
operation of the Title X family planning program is compatible
with free speech and the highest standards of medical care.
In order to clarify the purpose and intent of these
regulations, I am directing that in implementing these
regulations you ensure that the following principles, inherent
in the statute, are adhered to:
1.
Nothing in these regulations is to prevent a woman from
receiving complete medical information about her condition
from a physician.
2.
Title X projects are to provide necessary referrals to
appropriate health care facilities when medically
indicated.
3.
If a woman is found to be pregnant and to have a medical
problem, she should be referred for complete medical care,
even if the ultimate result may be the termination of her
pregnancy.
4.
Referrals may be made by Title X programs to full-service
health care providers that perform abortions, but not to
providers whose principle activity is providing abortion
services.
I am determined to assure the integrity of the Title X
program in its mission to provide family planning services to
low-income individuals; adherence to this guidance will produce
this result.
GBul
POSSIBLE AGREEMENT ON POLICY WITH RESPECT TO PREGNANCY
RELATED SERVICES IN TITLE X FUNDED CLINICS
[] - Material to delete
Underlined - Language to insert
A.
Treatment of Title X projects which provide prenatal care,
such as, but not limited to, community health centers,
hospitals, or [Planned Parenthood] family planning clinics
that offer such care:
When a woman comes in for family planning services and is
determined in the course of the visit to be pregnant, she
should be offered the following information regarding her
pregnancy[. T]: the provider of services will furnish a list of
community resources for medical care and social services which
may include providers of abortion but not providers whose
principal business is the provision of abortions; [. I] and if
the woman elects to remain in that [clinic] facility for
services, she will [be provided with the same pregnancy related
services and information] have access to services not covered
by Title X that all of the [projects'] facility's patients
receive. The project would be allowed to retain Title X funds
as part of its general operating support.
B.
Treatment of Title X projects which do not provide
prenatal care:
1. When a woman comes in for family planning services and
is determined in the course of the visit to be pregnant, she
should be offered the following information regarding her
pregnancy[. [I]if she is found to have a significant medical
problem, she should be referred to a provider of comprehensive
medical care[. T]; the project will furnish a list of
community resources for medical care and social services which
may include providers of abortion but not providers whose
principal business is the provision of abortions; [. I]; if
requested, the project will make every effort to assist the
pregnant woman in making an appointment with a prenatal care
provider[. I]; in addition, the project will provide the woman
with written information to be developed by the Secretary of
Health and Human Services about appropriate prenatal care that
includes a discussion of proper nutrition and exercise, the
need to avoid alcohol, drug and tobacco use, and the importance
of receiving medical care.
2. The project shall give factual answers to questions
the woman has about her pregnancy and her legal and medical
options as follows: [Q]questions about an individual's medical
conditions that relate to her pregnancy should be referred to
an appropriate practitioner, on or off premises[. I-
dentification of providers of adoption and pregnancy
termination services will be made available upon a woman's
request. ] ; upon a woman's request, a grantee may provide
factual information about the mix of services provided by each
provider and the payment sources accepted by each provider.
[The project is not to provide directive counseling to the
woman regarding her pregnancy.] Should this process of
answering questions be found to [be directive] encourage,
promote or advocate abortion as a method of family planning,
the Title X project would be subject to the procedures which
apply to misuse of grant funds, including termination of the
grant or portion of the grant which funds the project.
3. Nothing in these regulations is intended to preclude a
health care professional or trained clinician under the
supervision of a medical director, from fulfilling his or her
generally-accepted professional duty to provide or assure
access to emergency medical services.
C.
Relationship to Non-Title X Services
Nothing in these regulations is intended to circumscribe
the services offered outside the Title X project by a recipient
of Title X funds [by a Title X provider] with other public or
private funds, provided that all services must be consistent
with the program's rules on co-location of abortion services.
JUN 21 91 13:41 OPA
P.3
2922
Federal Register / Vol. 53, No. 21 / Tuesday, February 2, 1988 / Rules and Regulations
DEPARTMENT OF HEALTH AND
abortion, developing and disseminating
family planning. Indeed. as the Supreme
HUMAN SERVICES
materials advocating abortion. or taking
Court has recognized abortion is
legal action to make abortion available
"inherently different from other medical
Public Health Service
as a method of family planning.
procedures. because no other procedure
Proposed 42 CFR 59.8-59.10.
involves the purposeful termination of a
42 CFR Part 59
The Department requested public
potential life." Harris V. McRae. 448
Statutory Prohibition on Use of
comment on the proposed provisions.
U.S.297, 325 (1980). In McRae, the
Appropriated Funds In Programs
Approximately 75,000 comments were
Supreme Court stated that because there
Where Abortion Is a Method of Family
received during the 60-day comment
is a "legitimate congressional interest in
Planning; Standard of Compliance for
period. Of these comments, a majority
protecting potential life," '-Congress may
Family Planning Services Projects
favored the proposed policies. The
decline to subsidize abortions, even
Department has carefully considered the
though it may not erect legal obstacles
AGENCY: Public Health Service, HHS.
issues raised by the public. A
to the exercise of that choice. Id. Section
ACTION: Final rules.
description and dicussion of these
1008 and the rule below express just
issues precedes the final rules set out
SUMMARY: The Public Health Service
such a decision and thus fall squarely
below.
(PHS) amends the regulations governing
within the range of choices that the
the use of funds for family planning
Background
Supreme Court has recognized that the
services under Title X of the Public
Few issues facing our society today
government may legitimately make.
Health Service Act in order to set
are more divisive than that of abortion.
It is important to recognize that
specific standards for compliance with
Those who oppose abortion do': so on the
section 1008 extends to all activities
the statutory requirement that none of
ground that it 1s nothing less than the
conducted by the federally funded
the funds appropriated under Title X
killing of an innocent human life and, as
project. not just the use of federal funds
may be used in programs where
such, is not only the unconscionable
for abortions within the project. When a
abortion is a method of family planning.
destruction of an individual life but also
statute focuses only on the acutal use of
It is expected that the amendments will
sets the stage for the devaluation of life
federal funds, mere allocation of costs
improve compliance by grantees with
on a much broader scale. Those who
through appropriate bookkeeping entries
the statute and facilitate monitoring of
favor the choice of abortion view it as
may be appropriate. In section 1008,
compliance by PHS.
an immediate and positive option for
however, Congress crafted a broader
DATE: The rules are effective March 3,
pregnant women in crisis and consider
prohibition, and that prohibition should
1988, except for 42 CFR 59.9, which will
any governmental regulation of abortion
be given effect.
be effective April 4. 1988.
to be a wrongful intrusion by the State
Moreover, it is clear that Congress
into a very personal decision.
designed the Title X program to
ADDRESS: Nabers Cabaniss, Deputy
Indeed, the volume and highly
provided preventive family planning and
Assistant Secretary for Population
charged nature of the public comments
infertility services. not to provide all
Affairs. Room 736E, 200 Independence
received on this regulatory proposal
possible medical services, including
Ave. SW., Washington, DC 20201
emphasize the polar divisions of
services for the care of pregnant women
FOR FURTHER INFORMATION CONTACT:
national opinion on this issue. Because
(Compare section 1001 of the Act. 42
Nabers Cabaniss at 202-245-0152.
the rules below address such a
U.S.C. 300 and section 330 of the Act. 42
SUPPLEMENTARY INFORMATION: On July
controversial issue, it is imperative that
U.S.C. 254c.) This design is consistent
30, 1987, President Reagan announced
these final rules be precisely
with the-statutory prohibition of section
that the Department of Health and
understood. The extended discussion of
1008.
Human Services would. within 30 days,
the legal framework circumscribing the
The legislative history of Title X bears
publish proposed regulations applicable
Department's regulatory authority and
out this interpretation. The most
to grants under Title X of the Public
the detailed explanation of the
significant expression of congressional
Health Service Act. 42 U.S.C. 300, et
Department's actions below are
intent in this connection is contained in
seq.. to give effect to the statutory
provided for this reason.
the Conference Report accompanying S.
prohibition on the use of Title X
Title X of the Public Health Service
2108, which contains the following
appropriated funds in programs include
Act was enacted in 1970 by Pub. L 91-
statement:
abortion as a method of family planning.
572. It authorizes the Secretary of Health
and Human Services to, among other
It is, and has been. the intent of both
On September 1, 1987, a Notice of
Houses that the funds authorized under this
Proposed Rulemaking was accordingly
things, make grants to public and private
published in the Federal Register. 52 FR
nonprofit entities to establish and
legislation be used only to support preventive
33210. The September 1 notice proposed
operate family planning projects.
family planning services, population
rules which would prohibit Title X
Section 1001(a) of the Public Health
research, infertility services.1 and other
Service Act, 42 U.S.C. 300(a). Section
related medical, information and education
projects from counseling or referring
project clients for abortion as a method
1008 of Title X, 42 U.S.C. 300a-6,
activities. The conferees have adopted the
of family planning. The proposed rules
contains the following prohibition,
language contained in section 1008, which
also required grantees to separate their
which has not been altered since
prohibits the use of such funds for abortion in
order to make clear this intent.²
Title X project-physically and
enacted in 1970:
In addition, Congressman John D.
financially-from any abortion
None of the funds appropriated under this
activities. Finally. the rules proposed
title shall be used in programs where
Dingell. the principal sponsor of section
compliance standards for family
abortion is a method of family planning
1008, made the following statement on
the floor of the House:
planning projects funded under Title X
This language clearly creates a wall of
to specifically prohibit certain actions
separation between Title X programs
that promote or encourage abortion as a
and abortion as a method of family
1 The statutory requirements for infertility
services was not added until the 1978 amendments.
method of family planning, such as the
planning. It embodies a view that
$ Conf. Rep. No. 91-1667. 97th Cong. 2nd Sess. 8-9
use of project funds for lobbying for
abortion is inappropriate as a method of
(1970).
JUN 21 '91 13:41 OPA
P.3
2922
Federal Register / Vol. 53, No. 21 / Tuesday, February 2, 1988 / Rules and Regulations
DEPARTMENT OF HEALTH AND
abortion, developing and disseminating
family planning. Indeed. as the Supreme
HUMAN SERVICES
materials advocating abortion, or taking
Court has recognized abortion is
legal action to make abortion available
"inherently different from other medical
Public Health Service
as a method of family planning.
procedures, because no other procedure
Proposed 42 CFR 59.8-59.10.
involves the purposeful termination of a
42 CFR Part 59
The Department requested public
potential life." Harris V. McRae, 448
Statutory Prohibition on Use of
comment on the proposed provisions.
U.S.297, 325 (1980). In McRae, the
Appropriated Funds In Programs
Approximately 75,000 comments were
Supreme Court stated that because there
Where Abortion Is a Method of Family
received during the 60-day comment
is a "legitimate congressional interest in
Planning; Standard of Compliance for
period. Of these comments, a majority
protecting potential life,' "-Congress may
Family Planning Services Projects
favored the proposed policies. The
decline to subsidize abortions, even
Department has carefully considered the
though it may not erect legal obstacles
AGENCY: Public Health Service, HHS.
issues raised by the public. A
to the exercise of that choice. Id. Section
ACTION: Final rules.
description and dicussion of these
1008 and the rule below express just
issues precedes the final rules set out
such a decision and thus fall squarely
SUMMARY: The Public Health Service
below.
within the range of choices that the
(PHS) amends the regulations governing
the use of funds for family planning
Background
Supreme Court has recognized that the
services under Title X of the Public
Few issues facing our society today
government may legitimately make.
Health Service Act in order to set
are more divisive than that of abortion.
It is important to recognize that
specific standards for compliance with
Those who oppose abortion do so on the
section 1008 extends to all activities
the statutory requirement that none of
ground that it 18 nothing less than the
conducted by the federally funded
the funds appropriated under Title X
killing of an innocent human life and, as
project, not just the use of federal funds
may be used in programs where
such, is not only the unconscionable
for abortions within the project. When a
abortion is a method of family planning.
destruction of an individual life but also
statute focuses only on the acutal use of
It is expected that the amendments will
sets the stage for the devaluation of life
federal funds, mere allocation of costs
improve compliance by grantees with
on a much broader scale. Those who
through appropriate bookkeeping entries
the statute and facilitate monitoring of
favor the choice of abortion view it as
may be appropriate. In section 1008,
compliance by PHS.
an immediate and positive option for
however, Congress crafted a broader
DATE: The rules are effective March 3,
pregnant women in crisis and consider
prohibition, and that prohibition should
1988, except for 42 CFR 59.9, which will
any governmental regulation of abortion
be given effect.
be effective April 4. 1988.
to be a wrongful intrusion by the State
Moreover, it is clear that Congress
into a very personal decision.
designed the Title X program to
ADDRESS: Nabers Cabaniss, Deputy
Indeed, the volume and highly
provided preventive family planning and
Assistant Secretary for Population
charged nature of the public comments
infertility services. not to provide all
Affairs. Room 736E, 200 Independence
received on this regulatory proposal
possible medical services, including
Ave. SW., Washington, DC 20201
emphasize the polar divisions of
services for the care of pregnant women.
FOR FURTHER INFORMATION CONTACT:
national opinion on this issue. Because
(Compare section 1001 of the Act. 42
Nabers Cabaniss at 202-245-0152.
the rules below address such a
U.S.C. 300 and section 330 of the Act. 42
SUPPLEMENTARY INFORMATION: On July
controversial issue, it is imperative that
U.S.C. 254c.) This design is consistent
30, 1987, President Reagan announced
these final rules be precisely
with the-statutory prohibition of section
that the Department of Health and
understood. The extended discussion of
1008.
Human Services would. within 30 days.
the legal framework circumscribing the
The legislative history of Title X bears
publish proposed regulations applicable
Department's regulatory authority and
out this interpretation. The most
to grants under Title X of the Public
the detailed explanation of the
significant expression of congressional
Health Service Act, 42 U.S.C. 300, et
Department's actions below are
intent in this connection is contained in
Beq., to give effect to the statutory
provided for this reason.
the Conference Report accompanying S.
prohibition on the use of Title X
Title X of the Public Health Service
2108, which contains the following
appropriated funds in programs include
Act was enacted in 1970 by Pub. L 91-
statement:
abortion as a method of family planning.
572. It authorizes the Secretary of Health
and Human Services to, among other
It is, and has been. the intent of both
On September 1, 1987, a Notice of
Houses that the funds authorized under this
Proposed Rulemaking was accordingly
things, make grants to public and private
published in the Federal Register. 52 FR
nonprofit entities to establish and
legislation be used only to support preventive
33210. The September 1 notice proposed
operate family planning projects.
family planning services, population
rules which would prohibit Title X
Section 1001(a) of the Public Health
research, infertility services.1 and other
Service Act, 42 U.S.C. 300(a). Section
related medical, information and education
projects from counseling or referring
project clients for abortion as a method
1008 of Title X, 42 U.S.C. 300a-6,
activities. The conferees have adopted the
of family planning. The proposed rules
contains the following prohibition,
language contained in section 1008, which
also required grantees to separate their
which has not been altered since
prohibits the use of such funds for abortion in
order to make clear this intent.
Title X project-physically and
enacted in 1970:
In addition, Congressman John D.
financially-from any abortion
None of the funds appropriated under this
activities. Finally, the rules proposed
title shall be used in programs where
Dingell, the principal sponsor of section
compliance standards for family
abortion is a method of family planning.
1008, made the following statement on
the floor of the House:
planning projects funded under Title X
This language clearly creates a wall of
to specifically prohibit certain actions
separation between Title X programs
that promote or encourage abortion as a
and abortion as a method of family
The statutory requirements for infertility
services was not added until the 1978 amendments.
method of family planning, such as the
planning. It embodies a view that
Conf. Rep. No. 91-1667. 97th Cong., 2nd Sess. 8-9
use of project funds for lobbying for
abortion is inappropriate as a method of
(1970).
October XX, 1991
Dear Mr. Secretary:
Throughout the debate about the relationship of the
Title X family planning program and abortion counseling, some
have raised questions about the regulations that relate to the
services offered to pregnant women. In order to clarify the
purpose and intent of these regulations, I am directing that in
implementing these regulations you insure that the following
principles, inherent in the statute, are adhered to:
1. Nothing in these regulations is to prevent a woman from
receiving complete medical information about her condition
from a physician.
2.
Title X projects are to provide necessary referrals to
appropriate health care facilities when medically
indicated.
3.
If a woman is found to have any medical problem, she must
be assisted in receiving complete medical care, even if
the ultimate result may be the termination of her
pregnancy.
4.
Referrals may be made by Title X programs to full-service
health care providers that perform abortions, but not to
providers whose principal business is abortion.
I am confident that the regulations, if adhered to, will
assure that women will be counseled on their options, and that
the operation of the Title X family planning program is
compatible with free speech, and the highest standards of
medical care.
no gag
Sincerely,