[Federal Register: July 3, 2000 (Volume 65, Number 128)][NOTICES]
[Page 41281-41282]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of Public Health and Science
Provision of Abortion-Related Services in Family Planning
Services Projects
AGENCY: Office of Population Affairs, OPHS, DHHS.
ACTION: Notice.
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SUMMARY: This notice informs the public of the interpretations relating
to the statutory requirement that no funds appropriated under Title X
of the Public Health Service Act be used in programs in which abortion
is a method of family planning.
FOR FURTHER INFORMATION CONTACT: Samuel S. Taylor, Office of Population
Affairs, (301) 594-4001.
SUPPLEMENTARY INFORMATION: On February 5, 1993, the Department of
Health and Human Services published in the Federal Register a notice of
proposed rulemaking that proposed to revise the regulations at 42 CFR
Part 59, Subpart A. Subpart A of Part 59 sets forth the program
requirements applicable to grantees under section 1001 of the Public
Health Service (PHS) Act, 42 U.S.C. 300, et seq. The notice of proposed
rulemaking proposed to revise that subpart by readopting the program
regulations as they existed prior to February 2, 1988. This action
would have the effect of revoking the regulations published on February
2, 1988, commonly known as the ``Gag Rule,'' which set forth standards
for the compliance by such grantees with section 1008 of that Act, 42
U.S.C. 300a-6.
The February 5, 1993 notice of proposed rulemaking also proposed to
reinstitute the pre-1988 policies and interpretations regarding
compliance with section 1008. 58 FR 7464. As explained in the notice of
proposed rulemaking, those policies and interpretations derived from
previous opinions of the Department concerning section 1008. To promote
more useful public comment in the rulemaking process, the Department
subsequently made available a more detailed summary of the policies and
interpretations and reopened the public comment period. 58 FR 34042
(June 23, 1993).
A number of public comments on the prior policies and
interpretations were obtained during the reopened comment period, and
the public comments received during both comment periods were generally
focused on the prior policies and interpretations rather than on the
proposed regulatory language. The Department has changed one paragraph
of the regulations and has modified its prior interpretations in
several particulars based in part on the public comment received. These
modifications, and the grounds therefor, are described in the preamble
to the final rules published on this date in the rules section of the
Federal Register. The interpretations, as so modified, are set out in
the summary statement below. The summary below is also reorganized from
the summary statement made available for public comment, for purposes
of clarification.
Accordingly, to provide guidance to grantees in order to promote
uniform administration of the program and facilitate grantee compliance
with the interpretations that are being reinstituted in conjunction
with the final regulations adopted on this date, provided below is a
summary of the program regulatory requirements and interpretations that
relate to section 1008 of the PHS Act.
Program Policies Regarding the Title X National Family Planning
Program and the Section 1008 Abortion Prohibition
Section 1008 of the Title X statute, 42 U.S.C. 300a-6, states:
``None of the funds appropriated under this title shall be used in
programs where abortion is a method of family planning.'' This
prohibition applies not only to the performance of abortion by a Title
X project, but also to the conduct of certain abortion-related
activities by the project. However, the prohibition does not apply to
all the activities of a Title X grantee, but only to those within the
Title X project. This statement summarizes the Department requirements
and interpretations in existence prior to the imposition of the 1988
``Gag Rule'' with regard to implementation of section 1008, as modified
following the rulemaking of 1993.
1. General Principles
In general, section 1008 prohibits Title X programs from engaging
in activities which promote or encourage abortion as a method of family
planning. However, section 1008 does not prohibit the funding under
Title X of activities which have only a possibility of encouraging or
promoting abortion; rather, a more direct nexus is required. The
general test is whether the immediate effect of the activity in
question is to promote or encourage the use of abortion as a method of
family planning. If the immediate effect of the activity in question is
essentially neutral, then it is not prohibited by the statute. Thus, a
Title X project may not provide services that directly facilitate the
use of abortion as a method of family planning, such as providing
transportation for an abortion, explaining and obtaining signed
abortion consent forms from clients interested in abortions,
negotiating a reduction in fees for an abortion, and scheduling or
arranging for the performance of an abortion, promoting or advocating
abortion within Title X program activities, or failing to preserve
sufficient separation between Title X program activities and abortion-
related activities.
2. Abortion Counseling and Referral
Under 42 CFR 59.5(a)(5), a Title X project must:
Not provide abortion as a method of family planning. A project
must:
(i) Offer pregnant women the opportunity to be provided
information and counseling regarding each of the following options:
(A) Prenatal care and delivery;
(B) Infant care, foster care, or adoption; and
(C) Pregnancy termination.
(ii) If requested to provide such information and counseling,
provide neutral, factual information and nondirective counseling on
each of the options, and referral on request, except with respect to
any option(s) about which the pregnant woman indicates she does not
wish to receive such information and counseling.
However, there are limitations on what abortion counseling and
referral is permissible under the statute. A Title X project may not
provide pregnancy options counseling which promotes abortion or
encourages persons to obtain abortion, although the project may provide
patients with complete factual information about all medical options
and the accompanying risks and benefits. While a Title X project may
provide a referral for abortion, which may include providing a patient
with the name, address, telephone number, and other relevant factual
information (such as whether the provider accepts Medicaid, charges,
etc.) about an abortion provider, the project may not take further
affirmative action (such as negotiating a fee reduction, making an
appointment, providing transportation) to secure abortion services for
the patient. Where a referral to another provider who might perform an
abortion is medically indicated because of the patient's condition or
the condition of the fetus (such as where the woman's life would be
endangered), such a referral by a Title X project is not prohibited by
section 1008 and is required by 42 CFR 59.5(b)(1). The limitations on
referrals do not apply in cases in which a referral is made for medical
indications.
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3. Advocacy Activities
A Title X project may not promote or encourage the use of abortion
as a method of family planning through advocacy activities such as
providing speakers to debate in opposition to anti-abortion speakers,
bringing legal action to liberalize statutes relating to abortion, or
producing and/or showing films that encourage or promote a favorable
attitude toward abortion as a method of family planning. Films that
present only neutral, factual information about abortion are
permissible. A Title X project may be a dues paying participant in a
national abortion advocacy organization, so long as there are other
legitimate program-related reasons for the affiliation (such as access
to certain information or data useful to the Title X project). A Title
X project may also discuss abortion as an available alternative when a
family planning method fails in a discussion of relative risks of
various methods of contraception.
4. Separation
Non-Title X abortion activities must be separate and distinct from
Title X project activities. Where a grantee conducts abortion
activities that are not part of the Title X project and would not be
permissible if they were, the grantee must ensure that the Title X-
supported project is separate and distinguishable from those other
activities. What must be looked at is whether the abortion element in a
program of family planning services is so large and so intimately
related to all aspects of the program as to make it difficult or
impossible to separate the eligible and non-eligible items of cost.
The Title X project is the set of activities the grantee agreed to
perform in the relevant grant documents as a condition of receiving
Title X funds. A grant applicant may include both project and
non-project activities in its grant application, and, so long as these
are properly distinguished from each other and prohibited activities
are not reflected in the amount of the total approved budget, no
problem is created. Separation of Title X from abortion activities does
not require separate grantees or even a separate health facility, but
separate bookkeeping entries alone will not satisfy the spirit of the
law. Mere technical allocation of funds, attributing federal dollars to
non-abortion activities, is not a legally supportable avoidance of
section 1008.
Certain kinds of shared facilities are permissible, so long as it
is possible to distinguish between the Title X supported activities and
non-Title X abortion-related activities: (a) A common waiting room is
permissible, as long as the costs properly pro-rated; (b) common staff
is permissible, so long as salaries are properly allocated and all
abortion related activities of the staff members are performed in a
program which is entirely separate from the Title X project; (c) a
hospital offering abortions for family planning purposes and also
housing a Title X project is permissible, as long as the abortion
activities are sufficiently separate from the Title X project; and (d)
maintenance of a single file system for abortion and family planning
patients is permissible, so long as costs are properly allocated.
Whether a violation of section 1008 has occurred is determined by
whether the prohibited activity is part of the funded project, not by
whether it has been paid for by federal or non-federal funds. A grantee
may demonstrate that prohibited abortion-related activities are not
part of the Title X project by various means, including counseling and
service protocols, intake and referral procedures, material review
procedures, and other administrative procedures.
Dated: June 28, 2000.
Samuel S. Taylor,
Acting Director, Office of Population Affairs.
[FR Doc. 00-16759 Filed 6-30-00; 8:45 am]
BILLING CODE 4160-17-M
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