By Leah S. Poniatowski, J.D.
The HHS is seeking comments on a Proposed rule intended to align regulations with the statutory prohibition on using federal funds through Title X programs for encouraging or providing abortions or other prenatal care. Under the proposal, family planning programs under Title X are clarified to assist before conception. Comments should be received by the agency by July 31, 2018 (Proposed rule, 83 FR 25502, June 1, 2018).
Background. Title X of the Public Health Service Act (42 U.S.C. 300) was enacted in 1970 and authorizes the HHS to make grants to other entities in order to support family planning projects. Section 1008 of the same Act prohibits the use of Title X funds "in programs where abortion is a method of family planning." Through appropriation bills, Congress has added requirements to Section 1008, including requiring nondirective pregnancy counseling and precluding use of Title X funds for publication or distribution of literature reflecting support or opposition of legislative proposals or political candidates. The regulations issued in 1988 (53 FR 2922, February 2, 1988) girded the section 1008 prohibition and were upheld by the U.S. Supreme Court in Rust v. Sullivan, 500 U.S. 173 (1991). In 1993, a new presidential administration suspended the 1988 regulations and implemented new rules that largely removed many of the prohibitions from the 1988 rules, becoming finalized in 2000 (65 FR 41270, July 3, 2000). In 2016, HHS issued a rule impacting Title X eligibility, removing the prohibition of sub-awards to entities for reasons other than the entity’s ability to provide Title X services (81 FR 91852, December 19, 2016), but this was nullified by the Congressional Review Act (P.L. 115-23).
Explanation of changes. According to the HHS, the Proposed rule will "refocus the Title X program on its statutory mission—the provision of voluntary, preventive family planning services specifically designed to enable individuals to determine the number and spacing of their children…." HHS explained that the 2000 regulations are inconsistent with section 1008 of the Act, and the mandate of that provision "is most clearly met where there is a clear separation between Title X programs and programs in which abortion is presented or provided as a method of family planning." Thus, in order to ensure compliance with section 1008, HHS holds the view that "any action that directly or indirectly facilitates, encourages, or supports in any way the use of abortion as a method of family planning" is likewise prohibited.
Rule changes. In order to comport with the broad language of section 1008, HHS proposes regulations that would affect abortion counseling and referrals, physical separation of Title X Projects and abortion activities, infrastructure building, transparency and monitoring of fund usage, and compliance with laws concerning taxpayer fund expenditures. HHS proposed adding definitions for "family planning," "grantee," "program or project," and "subrecipient," and redefining "family planning" as a voluntary process before conception and "low income family" to include women unable to obtain family planning services under employer-sponsored health care plans impacted by employer conscience protections, as recognized following the contraceptive coverage mandate of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). The Proposed rule also would remove language that methods and services be "medically approved" and replace it with "acceptable and effective family methods or services," in addition to require planning and services for adolescents. Comments are also sought on the 60-day compliance requirement following publication of the final rule for all proposed requirements, except for the physical separation requirement, which would be one year from publication.
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