Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Notices 41281

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.

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

permissable 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.

41282 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Notices

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 antiabortion 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 nonproject 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 nonabortion 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]

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