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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