Courts sink new Title X regulations: (Special Report).

On February 2, 1988, the Department of Health and Human Services (DHHS) issued the final version of new regulations governing how Title X funds could be disbursed to family planning projects. The new rules, scheduled to go into effect 30-60 days afterward, represented a sweeping attempt to limit recipients' even peripheral contact with abortion, and were immediately challenged in three federal courts. In mid-February, two federal district court judges temporarily blocked enforcement of the regulations, and early in March, another judge permanently enjoined the DHHS from imposing the new regulations. This last decision concluded that, among other problems, the regulations "constitute an unconstitutional penalty for the exercise of First Amendment rights... [and violate] the equal protection component of the Fifth Amendment." (1)

Background

When Title X of the Public Health Service Act was enacted in 1970, one of its provisions (section 1008) stated: "None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning." Although no detailed implementing language was ever formulated, the DHHS, family planning providers and Congress all interpreted the provision during the 1970s to mean that Title X funds could not be used to provide abortions. Originally, the regulations for Title X permitted recipients to offer non-directive counseling to pregnant patients regarding their options (including abortion as one option), as well as appropriate referrals. In 1981, these regulations were modified so that recipients were required to offer options counseling and referrals to patients.

When the Reagan administration took office in 1981 and announced that it would pursue a conservative social agenda, among its top priorities were the revocation of Roe v. Wade and the addition to Title X of parental consent or notification requirements for teenagers. In addition, the General Accounting Office (GAO) ordered an audit of Title X recipients in 1982 because of charges from antiabortion and anti-family planning groups outside the government that these agencies were using government funds to encourage abortion. However, the audit revealed no such violations, and in 1985, DHHS Secretary Margaret Heckler testified before Congress that there was no evidence of such problems.

It has only been in the last several years, after most of their other efforts had been beaten back, that members of the Reagan administration have tried to change Title X regulations to make any providers involved with abortion counseling or referral ineligible to receive Title X funds. This plan has often been described as the erection of a "wall of separation" between family planning and abortion. After legislators made several unsuccessful attempts to add such restrictions to Title X authorizations in Congress, President Reagan announced in July 1987 that he had formally instructed the DHHS to institute changes in the administration of the Title X program.

The proposed new Title X regulations were first published in the Federal Register on September 1,1987, after which came the usual 60-day comment period. More than 75,000 opponents and proponents of the revisions wrote to the DHHS during this time, a bare majority of them favoring the new regulations. Many of those who wrote in opposition to the regulations were professional organizations such as the American Public Health Association (API-IA), the American Medical Association and the American College of Obstetricians and Gynecologists, as well as 34 senators, 114 U.S. representatives and 35 state health departments; most of those favoring the regulations were individual churches and citizens. A slightly revised set of regulations was announced by the DHHS in late January; (2) they became final on February 2 and were scheduled to go into effect 30-60 days later.

The Regulations