[Federal Register Volume 65, Number 128 (Monday, July 3, 2000)]
[Notices]
[Pages 41281-41282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16759]



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

[[Page 41281]]


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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 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.

[[Page 41282]]

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 
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 
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