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Office of Population Affairs
Office of the Assistant Secretary for Health
Attention: Title X Rulemaking
U.S. Department of Health and Human Services
200 Independence Avenue SW
Washington, DC 20201
Subj: Ensuring Access to Family Planning Services (Title X), RIN 0937-AA11
Dear Sir or Madam:
On behalf of the United States Conference of Catholic Bishops (USCCB), Southern
Baptist Ethics & Religious Liberty Commission, Catholic Medical Association, National
Association of Catholic Nurses, USA, and The National Catholic Bioethics Center, we submit
the following comments on the proposed rule, published at 86 Fed. Reg. 19812 (Apr. 15, 2021),
on ensuring access to family planning services under Title X of the Public Health Service Act.
In our view, the proposed rule fails to faithfully carry out Congress’s command that the
Title X program not provide or promote abortion or engage in abortion-related activities.
Although the USCCB continues to have grave reservations about government promotion of
contraceptives, we have long supported enforcement of the abortion funding restrictions in Title
Analysis
Section 1008 of the Public Health Service Act provides that “[n]one of the funds
appropriated under this subchapter shall be used in programs where abortion is a method of
family planning.” 42 U.S.C. § 300a-6. This provision has been part of Title X since its
inception in 1970. In addition to being codified in permanent law, Congress has regularly
reiterated the funding prohibition in appropriations for Title X. E.g., Consolidated
Appropriations Act, 2018, Pub. L. 115-141, Div. H., tit. II, 132 Stat. 349, 369 (2018) (stating that
amounts provided to voluntary family planning projects under Title X “shall not be expended for
abortions”). Thus, both Title X and the appropriations enactments that fund it draw a sharp
distinction between family planning and abortion. The text and purpose of Title X, as the
Department has previously acknowledged, make clear that Congress intended to create “a wall of
separation” between family planning and abortion by broadly prohibiting abortion-related
activities. 83 Fed. Reg. 22502, 25505 (June 1, 2018), quoting 53 Fed. Reg. 2922, 2922 (Feb. 2,
1988).
If there were any ambiguity (there is none, in our opinion), legislative history resolves it
in favor of a broad reading of the funding ban in Title X. As HHS correctly notes (86 Fed. Reg.
at 19812-13), the Conference Report accompanying the original Title X legislation makes clear
that “funds authorized under this legislation” would be—
used only to support preventive family planning services…. The conferees have
adopted the language contained in section 1008, which prohibits the use of such
funds for abortion, in order to make clear this intent.
H.R. Rep. No. 91-1667, at 8-9 (1970), reprinted in Cong. Rec. H39871, 39873 (Dec. 3, 1970).
Congressman Dingell, a principal sponsor of section 1008, stated: “With the ‘prohibition
of abortion’ amendment—Title X, Section 1008—the committee members clearly intend that
abortion is not to be encouraged or promoted in any way through this legislation. Programs
which include abortion as a method of family planning are not eligible for funds allocated
through this act.” 116 Cong. Rec. 37375 (1970). This was Congress’s stated understanding in
1970, and it remained Congress’s stated understanding in subsequent years. In 1978, for
example, during debate on possible amendments to Title X, Congressman Dornan proposed
amending the statute for the claimed purpose of strengthening the abortion funding restriction, as
follows:
No grant or contract authorized by this Title may be made or entered into with an
entity which directly or indirectly provides abortion, abortion counseling, or any
abortion referral services.
124 Cong. Rec. 37045 (1978). The House rejected the amendment on the ground that section
1008 already encompassed the proffered prohibitions. Congressman Rogers, a member of the
Public Health & Welfare Subcommittee at the time Title X was enacted, stated:
Abortion is not a method of family planning. Abortion comes after pregnancy—
after pregnancy. And the gentleman misses the point of what we are doing in
Title X. It’s before—before. It is to let people know how to avoid pregnancy.
We cannot use any funds for abortion. The amendment is not needed.
Id. at 37046.
Regrettably, the proposed regulations would eliminate the “wall of separation” between
the Title X program and abortion that Congress intended. The existing regulations—those that
the proposed regulations would replace—faithfully carry out Congress’s directive to keep
abortion out of Title X by stating that a Title X project shall “[n]ot provide, promote, refer for, or
support abortion as a method of family planning.” 42 C.FR. § 59.5; accord 42 C.F.R. 59.14(a)
(providing that a Title X project “may not perform, promote, refer for, or support abortion … nor
take any other affirmative action to assist a patient to secure such an abortion”). The proposed
regulations would not only eliminate this existing restriction, but would require Title X projects
to provide information, counseling, and referrals for abortion. 86 Fed. Reg. at 19830 [proposed
42 C.F.R. § 59.5(a)(5)] (stating that a project “must … [o]ffer pregnant clients the opportunity to
be provided information and counseling regarding … [p]regnancy termination” and “referral
upon request”) (emphasis added). This is a serious breach in the firewall between the funding of
family planning and abortion that Congress created. 84 Fed. Reg. 7714, 7716 (Mar. 4, 2019)
(concluding that the requirement that a Title X project refer for abortion violates section 1008).
At the same time, the Department acknowledges in the preamble to the proposed rule, as
it has in prior rulemaking, that a requirement to provide information, counseling, and referral for
abortion in the context of Title X runs afoul of federal conscience statutes. 86 Fed. Reg. at
19817 (“Under these [cited] statutes, objecting providers or Title X grantees are not required to
counsel or refer for abortions.”); id. at 19818 (noting that “individuals and grantees with
conscience objections will not be required to follow the proposed rule’s requirements regarding
abortion counseling and referral.”); see 84 Fed. Reg. at 7716 (making a similar concession); 83
Fed. Reg. at 25506 (same); 73 Fed. Reg. 78072, 78087 (Dec. 19, 2008) (same). This is an
important concession, but we believe it should be stated in the regulation, not relegated to the
preamble. A person reading only the regulation (and not the preamble) may otherwise conclude,
mistakenly, that the requirement to counsel and refer for abortion is without exception (insofar as
none is stated in the regulatory text). Hence, though we think no Title X project should be
allowed, let alone required, to counsel or refer for abortion given Congress’s directive that
abortion not be part of Title X, at a minimum there should be some clarification in the text of
the regulations themselves that no Title X project is required to do so over its objection. See 84
Fed. Reg. at 7716 (“The Department believes that it is appropriate and necessary to revise the
Title X regulatory text to eliminate the provisions which are inconsistent with the health care
conscience statutory provisions.”) (emphasis added). The Department identifies no reason to
omit this important qualification from the regulations, and the omission from the regulatory text
may deter providers from applying to receive grants under Title X. See 86 Fed. Reg. at 19815-16
(expressing a concern that an insufficient number of providers are applying to receive grants
under Title X). The omission could also be misunderstood by others who read the regulations
but may not fully attend to the preamble.
Along the same lines, we disagree with the Department’s proposal to eliminate the
requirement that a Title X project be organized so as to ensure complete physical and financial
separation between a grantee’s Title X activities and its abortion activities. The requirement of
physical and financial separation finds ample support in the text and legislative history of Title
X, and would help ensure that Title X funds are not used for abortion. The proposed regulations,
regrettably, would eliminate that important requirement. See Rust v. Sullivan, 500 U.S. 173, 190
(1991) (“if one thing is clear from the legislative history, it is that Congress intended that Title X funds be
kept separate and distinct from abortion-related activities”) (emphasis added); 83 Fed.
Reg. at 25505 (“the Department interprets section 1008 to establish a broad prohibition on
funding, directly or indirectly, activities related to abortion…. Thus, the Department believes
that section 1008’s mandate is most clearly met where there is a clear separation between Title
X programs and programs in which abortion is presented or provided”) (emphasis added).
The Department cites the departure of a number of abortion providers, including Planned
Parenthood, from participation in Title X as a reason to eliminate abortion restrictions in Title X.
86 Fed. Reg. at 19815. Such reasoning seem to us backwards. The departure of providers such
as Planned Parenthood from the Title X program is not a reason to eliminate abortion restrictions
from Title X. It is, instead, a reason to ensure that Title X grants will be made only to those
providers who will respect the separation that Congress mandated between abortion and Title X.
Put another way, Planned Parenthood’s departure from the Title X program is no reason to
attempt by regulation to revise Title X, but simply underscores why Planned Parenthood’s
insistence on the integration of abortion into family planning services makes it an unsuitable
provider of Title X services.
Finally, in the preamble to the proposed rule, the Department recognizes the statutory
obligation that grantees encourage family participation in Title X projects and in the decision of
minors to seek family planning services under Title X. This requirement, imposed by Congress,
reflects the common sense notion that, as the primary teachers and caregivers of their children,
parents should be involved in any decision regarding their children’s own health and care. For
some reason, however, this requirement was omitted from the proposed rule. Compare 42 C.F.R. § 59.5 (current text) (stating that each Title X project “must … [e]ncourage family
participation in the decision to seek family planning services”), with id. (proposed text), 86 Fed.
Reg. at 19830-31 (omitting this requirement). The omission may have been inadvertent, as the
Department provides no mention of it, let alone any reason for it, in the preamble. We urge the
Department to restore this language to the regulations.
Conclusion
To summarize:
• We oppose the proposed rule’s failure to faithfully carry out Congress’s
intention that the Title X program not provide, fund, promote, encourage, or refer
for abortion or abortion-related activities.
• We oppose the proposed rule’s elimination of the requirement that a Title X
project be organized to ensure the physical and financial separation of Title X
activities from abortion.
• We request that the final regulations expressly mention the right of individuals
and grantees not to counsel or refer for abortion, a statutory right acknowledged in
the preamble to the proposed rule.
• We request that the final regulations retain the requirement that Title X projects
encourage family (including parental) participation in the decision to seek family
planning services, a statutory requirement acknowledged in the preamble to the
proposed rule.
Thank you for the opportunity to comment.
Sincerely
Russell D. Moore
President
Southern Baptist Ethics & Religious Liberty Commission
Anthony R. Picarello, Jr.
Associate General Secretary & General Counsel
USCCB
Michael Parker, M.D.
President
Catholic Medical Association
Michael F. Moses
Associate General Counsel
USCCB
Ellen Gianoli, B.S.N., M.A., R.N.
President
National Association of Catholic Nurses, USA
Joseph Meaney, Ph.D.
President
The National Catholic Bioethics Center
