Proposed Regulations for Title X
1. Prohibits counseling and referrals of any pregnant client·. Permits providing a list of services for prenatal care, delivery and social services.
2. Prohibits Title X funds to agencies that .”encourage, promote or advocate abortion as a method of family planning” even with their own money.
3. Requires separate family planning and abortion facilities (e.g., records, personnel, entrances, addresses, phones, stationery, etc.).
This is not an abortion issue. Title X clinics do not now encourage or promote abortions by giving-non-directive options counseling with federal funds.
The issues are
1. Clinics will be left liable for malpractice suits if they do not follow informed consent procedures.
2. This interferes with the doctor/patient privilege and the doctor’s obligation to the patient.
3. This denies many poor women information about their medical care. For many women a family planning clinic is their first entry into the health care system.
* Publicly funded medical providers may not give medically indicated information to poor women, even if they ask for it.
* Publicly funded health agencies may not counsel a woman with an ectopic pregnancy about what this means to her medically.
* Publicly funded health agencies may not have a copy of the Yellow Pages on the premises.
* Publicly funded health agencies must ignore 17 years of proper, legal, ethical, medical care that have been supported by both parties in Congress and by the public
DBBS is asking for comments on proposed regulations for Title X which would· have these effects by November 2, 1987.
Please send comments to:
Deputy Assistant Secretary for Population Affairs Department of Health and Human Services PO Box 23993, L’Enfant Plaza Washington, D.C. 20026-3993
This is not an abortion issue. It is an issue of provision of proper medical information. This is not lobbying. It is responding to a request for public comment.
A Corporation for Research, Policy Analysis and Public Education
2010 Massachusetts Avenue, N.W. Washington, O.C. 20036
Telephone 202 296-4012
QUESTIONS AND ANSWERS ON
THE ADMINISTRATION’S PROPOSED NEW REGULATIONS TO THE TITLE X FAMILY PLANNING PROGRAM
On September 1, 1987, the Public Health Service published a notice in the Federal Register of its intent to amend the regulations for the Title X family planning program to reflect changes in the program mandated by President Reagan in a speech before antiabortion leaders on July 30. Those changes would constitute a radical rewrite of 17 years of legislative and administrative history surrounding Title X and could, if promulgated, seriously affect the way the program is run and the women served by family planning clinics nationwide.
As proposed, the regulations would ban the provision of any information even neutral, factual information — related to abortion or abortion services, in family planning clinics supported in any extent with Title X funds. They also would place a number of restrictions on family planning services providers which would impede their ability to serve their clients. They are designed to do two things: first, to manipulate pregnant women seeking information from family planning clinics into a particular course of action — carrying a pregnancy to term — by denying her outright any information on her other legal options; second, to harass family planning providers through the imposition on their Title X projects of time consuming, expensive and in many cases absurd administrative requirements so as to force them into making a stark choice between accepting the government’s mandate that only pre-censored information be given or foregoing federal assistance altogether.
Interested organizations and individuals have 60 days – until November 2, 1987 – to file comments with the Department of Health and Human Services (DHHS). After taking the comments into account, the department intends to issue final regulations within 45 days thereafter.
What is Title X?
Title X of the Public Health Service Act authorizes project grants to public and private nonprofit organizations for the provision of a broad range of family planning services and methods (including natural family planning and infertility services) to all who want and need them, with priority given to low-income persons . By law, no abortions are now or have ever been provided with Title X funds. In addition, Title X provides for a training program for clinic personnel and for limited community-based education activities, and authorizes research in the reproductive sciences and contraceptive development. Nearly five million women per year receive information and/or medical services through organized family planning clinics, most of which receive Title X funds in addition to other sources of funding, such as Medicaid, state funds and patient fees.
What services are provided under Title X?
Family planning service providers offer basic reproductive health care in their communities. While the range of services can vary among individual clinics, depending on the needs of the communities they serve, core services include contraceptive information and the provision of contraceptive services when requested, gynecological examinations that include basic lab tests and other such basic screening services as testing for high blood pressure and screening for breast and cervical cancer (Pap smears), STD detection, pregnancy testing, natural family planning, and infertility services. Less frequently, when local needs warrant, family planning clinics also provide outpatient sterilization and prenatal care services.
Why do family planning clinics offer pregnancy tests and related counseling?
Reproductive health care standards, as well as current federal • guidelines, require that a thorough physical examination be performed before appropriate methods of contraception can be prescribed. In some cases, that might require a pregnancy test, since obviously contraception should not be used by someone who is already pregnant. Moreover, many women come to family planning clinics for the first time because they think they might be pregnant. This is especially true of teenagers, most of whom wait for more than a year after they have become sexually active before coming to a family planning clinic. Whether or not a client is pregnant, or is choosing the most appropriate contraceptive, she should be given complete information as to the relative risks, benefits and alternatives available.
Have Title X funds ever been used for abortions or for lobbying?
Family planning clinics have always been prohibited from using Title X funds for abortions or for lobbying purposes. Allegations of noncompliance in these areas by antiabortion activists led to a Congressionally-requested investigation by the General Accounting Office (GAO) as well as a simultaneous examination by the Inspector General of DHHS. Both reported in September 1983 that all Title X clinics studied were operating in full compliance with the law found no evidence that title X funds had been used for abortions or to advise clients to have abortions.” (GAO/HRD-82-106). Subsequently, in testimony before the House Subcommittee on Health and the Environment in both 1984 and 1985, and again before an appropriations subcommittee in March 1987, DHHS officials including Secretaries Schweiker, Heckler and Bowen specifically reaffirmed that clinics were in full compliance with the prohibition.
Under current Title X regulations, what information do women facing an unin tended pregnancy currently receive? How would this change under the proposed regulations?
Current federal guidelines require that women seeking information about their options for handling an unintended pregnancy be given non-directive counseling “on the following alternative courses of action, and referral upon request: prenatal care and delivery; infant care, foster care, or adoption; pregnancy termination.” Coercion of any kind is not only prohibited by law but is counter to the principle of voluntary participation upon which Title X is based. Moreover, professional medical ethics and standards require that patients be counseled and referred to other sources of care of assistance when needed and available. Since pregnancy is a condition that requires medical care, whatever course is chosen, referrals to safe sources of further care should be provided. Failure to make appropriate referrals could, under cer tain conditions, provide the basis for malpractice action.
Under the proposed regulations, once a woman has a positive pregnancy test, only one type of information would be offered: a full listing of providers of “appropriate prenatal and delivery services.” All other informa tion – even nondirective, factual information – regarding options of handling an unintended pregnancy would be banned. Specifically, no mention of the op tion of abortion could be made, which is the major underlying purpose of the new regulations. Thus, a clinic receiving federal family planning funds could not provide a pregnant woman with the name, address or telephone number of a doctor who performs abortions, even upon request. However, because all post pregnancy counseling is prohibited, the new rules would also forbid counseling on the option of giving the child up for adoption performed with Title X funds after a client has received the results of a positive pregnancy test. (Counseling on adoption could only be provided in the context of counseling infertile couples trying to become pregnant and have a child.)
Where will women be able to receive complete information on all of their legal medical options for handling an unintended pregnancy? Do women have a right to know this information?
If the proposed regulations take effect in their current form, fewer women will be able to receive complete medical information regarding an unintended pregnancy. Family planning clinics would have to decide whether to continue to receive federal funding (in which case they would be precluded from offering full-scale counseling and referrals), or whether to forego federal funds in favor of the continued provision of non-directive counseling and referrals. Clinics in the latter position would face economic hardship of varying degrees; some possibly could close their doors. In either case, there would be even fewer clinics available that provided the full range of information sought by their clients.
Family planning clients, as do all people receiving health care or counseling, have a right to receive complete information in order to make choices about their medical care – the doctrine of informed consent. According to a 1982 report by the President’s Commission for the Study of Ethical Problems in Medicine, “of particular concern in health care contexts is the withholding or distortion of information in order to affect the patient’s beliefs or deci sions…. Since the judgment about which choice will best serve well-being properly belongs to the patient, a physician is obliged to mention all alter native treatments, including those he or she does not respect or favor…” This doctrine applies to those patients who are low-income as well as to those who can afford private medical care; neither is the right to receive complete information affected by whether or not the government decides to pay for abortion procedures.
Current federal guidelines for the Title X family planning program fully comport with the tenets of informed consent, requiring family planning clinics to provide nondirective counseling, and referrals upon request, on all legal medical options for handling an unintended pregnancy. These guidelines are based on standards held by the American College of Obstetricians and Gynecologists which state: “In the event of an unwanted pregnancy, the physician should counsel the patient about her options of continuing the pregnancy to term and keeping the infant, continuing the pregnancy to term and of offering the infant for legal adoption, or aborting the pregnancy.”
Moreover, a close examination of the legislative history of the Title X program and subsequent congressional action indicates that Congress itself never had any intention of restricting pregnancy counseling or abortion refer ral services. The conference report for the 1970 bill establishing the original Title X program specifically mentions “other related medical, informational and educational activities,” certainly broad enough language to encompass all counseling and referral activities that are appropriate or required by commonly accepted professional standards. In addition, the conference report language explaining Section 1008 (prohibiting funding for abortions as a method of family planning) is totally devoid of references to or prohibitions on referral and counseling services. Moreover, since 1970, in- numerable attempts to ban the use of federal funds for pregnancy counseling and referrals for abortions have been rejected by Congress.
When they provide pregnancy counseling and referrals, don’t family planning clinics – or, at least, Planned Parenthood clinics – “encourage” abortion?
Family planning clinics have always been prohibited from using Title X funds for abortion. However, under current federal guidelines, nondirective counseling and referrals on all legal medical options for handling an unintended pregnancy are specifically required. Repeated audits by federal authorities – requested by antiabortion activists – have shown that no clinics receiving Title X funds to be in violation of federal law. Clinics affiliated with Planned Parenthood who receive Title X funds operate in the same manner, and comply with the same rules with regard to counseling and referral services as do other clinics run by state and local health departments, hospitals or other agencies.
Who would be affected by this ban on information?
Both the recipients of family planning services and the providers of those services would be severely affected by the revision of the Title X regulations. For those women seeking counseling and referrals to other medical facilities, the options would be limited solely to a list of prenatal care and delivery services. The options of adoption or abortion could not even be presented using Title X funds, much less referrals given to women seeking those options. Furthermore, since most family planning clinics around the country receive other sources of income in addition to Title X and serve a wide range of women, any woman being served in a facility that receives any Title X funds — even if she is paying the full fee — will be denied information, not just the low- and marginal-income clients for whom Title X funds are primarily targeted. Moreover, few family planning clients know whether or not the clinic they attend receives federal funds; they would have no way of know ing that they were receiving incomplete, pre-censored, government-approved in formation.
The providers of family planning services – doctors, nurse practitioners, counselors – will also be placed in a difficult position by the proposed regulations. Health care professionals are under ethical medical obligations to provide patients with all relevant information regarding their condition and alternative treatments. For the federal government to unilaterally restrict that information could well subject these providers to the risk of legal action.
Would any new organizations not currently receiving Title X funds be funded under the proposed regulations?
In the preamble to the revised regulations, the assertion is made that they will “insure the ability of otherwise eligible organizations or programs that refuse to engage in abortion-related activities to receive support under Title X.” However, it is unlikely that this promise could be fulfilled under the Title X statute, which requires that a full range of “acceptable and effective family planning methods and services” be provided. Most antiabortion counseling centers do not offer contraceptive services; even under the proposed regulations, they would not be eligible for Title X funds.
How would family planning clinics be affected by a prohibition on the colocation of family planning services and “abortion-related activities?”
The proposed regulations would require that any family planning project receiving federal funds keep its services “financially and physically” dis tinct from any “abortion-related activities,” including pregnancy counseling and referral for abortions and any other information on abortion in any form. Separate accounting, personnel and medical records would be required; common waiting and examination rooms would be prohibited, as would shared receptionists or telephone numbers; even common street or mailing addresses would not be allowed. The revised rules go much farther than former attempts to separate Title X clinics from facilities that actually provide abortions, additionally prohibiting even the mention of the word. To comply with the proposed regulations, a family planning clinic would have to contort itself and its legitimate activities not only at its expense, but all of those who receive family planning services.
Under the proposed regulations, could organizations use their own non-public funds to counsel on, refer or advocate for abortion, and still receive Title X funding?
Theoretically, yes. In fact, the preamble to the regulations takes pains to state that they “are not to be construed as restricting or limiting the activities of grantee organizations when such activities are entirely out side of, and separate from, a Title X funded program” (emphasis added). This is an attempt to make the regulations appear to comply with recent court rulings that have found it unconstitutional to prohibit a private agency that receives government family planning funding from using its own funds for abortion-related activities. ( Most recently in Babbitt v. Planned Parenthood of Northern and Central Arizona, the U.S. Supreme Court upheld a lower court decision that the organization’s funding for these activities had been kept separate and strictly accountable, and that the state could not tell the clinic what to do with its private funds.) However, in practice, the contortions an organization would have to go through in order to ensure that its Title X-funded activities are “entirely outside of, and separate from,” both “physically and financially,” any “abortion related activities” are so burden some and expensive that most providers will be faced with a stark choice: accept the government’s money, along with its mandate that only pre-censored information be given to pregnant clients, or forego government assistance entirely.
Prepared by the Washington Office, The Alan Guttmacher Institute
The Arizona Public Health Association opposes the proposed Title X regulations. If put in effect these regulations would deny millions of poor women access to proper medical care through the informed consent process. In addition these proposed regulations interfere with the traditional doctor/patient relationship by preventing the doctor from giving appropriate medical/health information to the patient.