Public comment period now open for proposed Protect Life Rule for Title X

By Steve Larkin, Catholic News Service

WASHINGTON (CNS) — The public comment period on the Protect Life Rule, a proposed revision to Title X regulations, opened June 1 and will close July 31.

The Office of Population Affairs, part of the U.S. Department of Health and Human Services, oversees the Title X Family Planning Program.

In May, the Trump administration proposed reinstating Reagan-era regulations to prevent funds appropriated under Title X from being used in programs that include abortion as a method of family planning or that make abortion referrals. However, the changes would not affect the amount of money spent on Title X grants.

When an agency proposes changes to regulations, it specifies a comment period, usually between 30 and 60 days, during which the public may submit comments about the rule. After the comment period closes, the agency will consider the new data and arguments it received from the comments and either terminate, revise, or proceed with the proposed changes.

According to the Office of Population Affairs, the proposed revision is based on the most accurate interpretation of the Family Planning Services and Population Research Act of 1970, which enacted Title X. Section 1008 of this act states that “none of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.”

After looking at this text, the purpose of the statute and the legislative history of the 1970 law, the agency said it has decided that “that prohibition includes any action that directly or indirectly facilitates, encourages, or supports in any way the use of abortion as a method of family planning.” Since the current regulations regarding Title X only prevent Title X money from funding activities that directly facilitate abortions, the change is aimed at bringing the regulations in line with the intent of Section 1008.

The proposed Protect Life Rule would reinstate Title X restrictions issued in 1988 by President Ronald Reagan. Planned Parenthood of New York City immediately challenged the rules, claiming the denial of public funds violated their constitutional rights of free speech because the rules included a prohibition on abortion referrals.

In 1991, the U.S. Supreme Court ruled 5-4 the government had the right to establish rules that fund only family planning programs that do not “encourage, promote or advocate abortion.” When President Bill Clinton took office in 1993, he reversed the regulations.

When Trump announced the proposed Protect Life Rule to separate abortion from the Title X program, New York Cardinal Timothy M. Dolan, chairman of the U.S. bishops’ Committee on Pro-Life Activities, said it “is greatly needed and deeply appreciated. Abortion always takes the life of a child and often harms the mother, her surviving children, and other family and friends as well.”

With these proposed changes, the Office of Population Affairs, or OPA, said it hopes to address several problems with the current regulations. Under the current regulations, Title X programs must offer abortion counseling and referrals to abortion clinics to pregnant women upon request. The OPA believes that doing so requires that Title X money be used to facilitate abortion, so facilitating abortion contradicts its interpretation of Section 1008.

Concerns regarding the fungibility of money also motivated some of the proposed rule changes, according to the OPA. Current regulations only require that family planning organizations that both receive Title X money and do non-Title X abortion-related activities carefully keep the money for these two functions separate.

The OPA said such a setup both creates the appearance that Title X money is funding abortions or abortion-related activities and leads to the danger that Title X funds, whether intentionally or unintentionally, will be used for impermissible purposes.

According to a Guttmacher Institute report, the percentage of abortions performed at “nonspecialized clinics” — that is, a facility which is not a hospital and where less than half of patient visits are for abortion services — has increased from 24 percent in 2008 to 36 percent in 2014.

Since these clinics provide services that are not related to abortion, many of them receive Title X funds and provide Title X services. The OPA believes that the increase in abortions being performed at these clinics, which are currently eligible for Title X funds, requires a change in regulations to ensure that Title X money is not being spent on abortion-related services.

The HHS agency is also concerned that, since providers of Title X services must secure other sources of revenue to be eligible for Title X funds, these other revenue sources can be used to supply abortion-related services, freeing up Title X funds for other uses. As a result, the OPA said, Title X funds can enable abortion-related services to be provided, even if none of the Title X money is spent directly on abortion-related services.

Another Guttmacher Institute report found that many providers of family planning services use Title X money in this way.

Title X money comes in the form of a grant, while Medicaid and private insurance, both key sources of revenue for providers, only reimburse for services provided.

“Providers have long relied on that flexibility (of getting direct grants) to hire, train and maintain their staff to meet the diverse needs of their clients and community,” according to the Guttmacher Institute report.

“The upfront investments in staffing, training and infrastructure needed to work effectively with health plans — and to thereby draw in new revenue to serve more clients — are substantial, and flexible funds like those provided through Title X are ideal for such investments,” the report said.

The proposed regulations would require those who receive Title X grants to name subrecipients, referral agencies and other agencies to which Title X money would flow and describe their relationship with those organizations in order to increase oversight of Title X spending.

The changes also would expand monitoring of the use of Title X funds in general and devote more effort to ensuring that the recipients of Title X grants are aware of the various impermissible uses of that money.

In May, 85 national and state pro-life groups, 41 U.S. senators, and 153 U.S. representatives called on President Donald Trump and HHS to issue new regulations to prevent Title X money from being spent on abortion-related services as part of fulfilling his promise on the campaign trail to prevent any taxpayer money from being spent on abortions or abortion-related services.

A plurality of Americans favors the proposed change in regulations. According to a poll conducted by McLaughlin & Associates, 48 percent of Americans favored preventing taxpayer funds from going to clinics that perform or refer for abortions, while 40 percent were opposed.

Even more Americans favor prohibiting taxpayer money from being spent on abortions: A Marist poll found that 60 percent of Americans hold this position.

Editor’s Note: Public comment on the proposed revisions to Title X can be submitted via this link: https://bit.ly/2kO5RJx.