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August 21, 2018

ABA opposes proposed Title X family planning restrictions

The ABA is urging the Department of Health and Human Services (HHS) to eliminate proposed restrictions on abortion counseling and referral services that are included in regulations proposed July 1 regarding family planning clinics under Title X of the Public Health Service Act.

“The proposed regulations are premised on the assertion that counseling regarding pregnancy-termination options or referral to abortion providers upon request violates the statute’s prohibition against using Title X funds to encourage or promote abortion as a method of family planning,” ABA Governmental Affairs Director Thomas M. Susman wrote July 30 to ADM Brett Giroir, M.D., assistant secretary for health at HHS.

Susman explained that this is a “significant departure from the current longstanding regulatory interpretation of this core prohibition,” under which Title X clinics currently offer patients medically accurate counseling and referrals for all pregnancy options, including prenatal care, adoption, and abortion. The proposed regulations seek to reinstate short-lived regulations from the 1990s that were known as the domestic “gag rule” because they prevented Title X recipients from providing information to their patients on any abortion-related service.

The ABA comments focused on Sections 59.5 and 59.14 of the proposed regulations. Proposed changes to Section 59.5 would eliminate the current requirement that Title X clinics offer pregnant women the opportunity to receive information and nondirective counseling regarding prenatal care and delivery, infant care, foster care, adoption, and pregnancy termination. The section specifically states that no Title X provider may promote, refer for, support, or present abortion as a method of family planning. The new Section 59.14 expressly prohibits referral for abortion as a method of family planning or affirmative actions that assist a patient in securing an abortion. All patients would be referred for prenatal care, but a doctor may – but is not required to − provide a list of qualified comprehensive prenatal service providers, some of which may provide abortion services, if a patient clearly states that she has decided to have an abortion.

The ABA adopted policy in 1991 supporting legislation that ensures the right of patients at federally funded family planning clinics to receive full counseling and referrals on all medical options related to pregnancy and the right of health care professionals to advise their patients in accordance with their best medical judgment and professional ethics. The association affirmed and expanded the 1991 policy in 2005.

“The physician-patient relationship should be first and foremost grounded in trust and should remain above the fray of politics,” Susman wrote. “As part of that trust, patients should expect that their health care providers will discharge their obligations to provide complete and accurate information about treatment options and about the benefits and risks of each option, even when the providers do not offer such treatment themselves.”

In addition, he emphasized that provision of accurate and comprehensive information regarding medical options should not be limited to only women who can afford private physicians.

The proposal has also elicited concern from members of Congress. In a July 31 letter to HHS Secretary Alex Azar II, more than 40 senators emphasized that the proposed regulations, rather than seeking to ensure that qualified providers can offer the reproductive health care and family planning services that are needed in this country, prioritize “ideology and ignore the goal and intent of Congress in establishing a nationwide family planning program.”