Domestic Gag Rule? Déjà Vu All Over Again

Marilyn Keefe

Last week, nearly 80 conservative groups led by the Family Research Council asked President Bush to strip family planning clinics of their eligibility for Title X funds if they refer patients for abortions or share facilities with abortion providers -- which would bring the global gag rule home.

Last week, nearly 80 conservative groups led by the Family Research Council (FRC) asked President Bush to strip family planning clinics of their eligibility for Title X funds if they refer patients for abortions or share facilities with abortion providers. It’s the latest assault on the clinics that are a lifeline for so many low-income women clinics that provide access to the contraception, counseling and other preventive services that are so essential for women’s health and well-being.

The FRC website has gone so far as to give instructions to its “prayer team” on the gag policy. Its prayer says, in part:

May President Bush…boldly act to implement the Reagan doctrine regarding federal tax dollars for Title X funding – NO abortion referrals, NO funds to groups sharing facilities with abortion clinics.

If you have a sense of déjà vu, you’re not wrong. This is an attempt to revive the Reagan-era policy first promulgated in 1988 regulations issued by the Department of Health and Human Services. They prohibited health care professionals in Title X family planning clinics from providing any abortion-related information or referrals, even if a patient specifically asked. Counselors at that time were instead required to give all pregnant women referrals for prenatal care and delivery.

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The gag rule put medical professionals in an impossible situation. They had to choose between giving patients complete medical information and complying with the law.

The gag rule also interfered with “informed consent,” which requires health care providers to fully disclose the range of options available to a patient.

In addition, the Reagan gag rule required complete physical and financial separation of clinics’ privately funded abortion-related activities from its Title X project activities – costly and absurd requirements intended to make it appreciably more difficult for reproductive health clinics to provide the care women need.

Seventy-eight major national health organizations, 36 state health departments and 25 schools of public health went on record in opposition to the gag rule, arguing that it interfered with medical providers’ First Amendment right to free speech and their ability to discuss the full range of medical options with patients. But in a 5-4 vote in Rust v. Sullivan in 1991, the Supreme Court upheld the gag rule.

Fortunately, that anti-choice victory was short-lived. Other legal challenges put the regulation on hold and President Clinton suspended the gag rule when he took office in 1993. Regulations to codify Clinton’s policy change were issued in 2000; they mandate that pregnant women be offered neutral and factually accurate information about all their legal medical options, including “prenatal care and delivery; infant care, foster care, or adoption; and pregnancy termination,” as well as referrals for services, including abortion, upon request. The Clinton-era regulations also require Title X projects to be separate and distinguishable from abortion-related activities.

But now the FRC wants to take us back to the future, and there’s a decent chance the Bush Administration will do its bidding.

It can only do so by ignoring the facts. Federal law already prohibits funding to provide, promote or encourage abortion. Right now, without the gag rule in place, Title X clinics are prohibited from providing pregnancy options counseling that promotes abortion or encourages women to obtain abortions. Right now, without the gag rule in place, they may only give patients complete factual information about all medical options and the accompanying risks and benefits. Right now, a referral for an abortion can only be given upon request, and when a Title X clinic does provide an abortion referral, it can give a patient the name, address and telephone number of an abortion provider but it cannot negotiate a lower fee, make an appointment or provide transportation. And in the 37-year history of the Title X program, no violation of these prohibitions on abortion-related activities has ever been documented.

So what’s the point? In part, this may be political theater. In part, it’s what administrations tend to do as their terms draw to a close, trying to advance policies that Congress and voters oppose in order to please, or repay, loyal constituency groups. In part, it may be about giving John McCain a way to appeal to fundamentalists by reiterating his opposition to women’s right to choose.

But whether or not these things are true, it remains a disturbing attempt to elevate extreme ideology over commonsense health policies designed to further access to basic health care.

Let’s be clear: This isn’t what Americans want.

And this isn’t going to work long-term.

If the Bush Administration takes its lead from the Family Research Council and tries to reinstate the domestic gag rule, any victory is likely to be short-lived. Americans support family planning, which can reduce the need for abortion – and they know we won’t get there by attacking Planned Parenthood, denying funding to women’s health clinics, and depriving low-income women of information and services they need.

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