IN a Monitor interview, the physician who administers the federal government's family-planning grant program sought to clarify regulations that will ban abortion counseling in clinics that receive federal money. Unless Congress passes legislation overturning the ban within the next two to three months - and does so with the two-thirds majority necessary to override a promised presidential veto - all such clinics will have to decide whether to forgo the money or, if they decide to keep the money, either to refrain from discussing abortion or to restructure their operations.
Proponents of the legislation face a tough battle to win a two-thirds majority, particularly in the House of Representatives, say informed congressional observers.
According to Dr. William R. Archer III, the obstetrician who runs the Office of Population Affairs at the Department of Health and Human Services (HHS), a clinic may keep its federal funding if it can show that any abortion services its provides are ``physically and financially separate.''
``Financial separation is very clear,'' says Dr. Archer. ``It means no comingling of funds, no funds going back and forth [between programs]. In other words, it means separate books.''
The concept of ``physical separation'' is tougher to pin down, says Archer. If a counselor simply hands a client over to another counselor at the next desk whose salary is not covered by federal funds, that is not acceptable, he says. But if the nonfederally funded counselor sits in a separate room, that's ``probably'' OK, he adds.
``I'd have to look at each case individually,'' Archer explains. ``More important, what we want is a program with integrity that supports family planning and does not steer a woman toward abortion.''
Under the regulations - which were announced in 1988 but are only now about to go into effect nationwide following the Supreme Court's May 23 ruling (Rust v. Sullivan) upholding the ban on abortion counseling - a woman who asks about abortion will have to be told that the clinic ``does not counsel for abortion.'' She would then be referred for prenatal care.
But if the prenatal services she was referred to did not receive federal funds under Title X of the Public Service Health Act, then those counselors would be free to discuss abortion with the patient, says Archer.
Such limitations of speech ``on federally funded time'' have fueled an impassioned debate that goes beyond the pro-choice and anti-abortion battle. Some members of Congress who oppose abortion are against the so-called ``gag rule'' because, they say, it would force doctors and other medical counselors to behave unethically by not allowing them to discuss all options with a pregnant patient.
Dr. Archer complains of misinformation in the news media about the regulations. He says it's not true that doctors may not mention the word ``abortion.''
``If a woman says, `Can I have an abortion,' the doctor may say, `Yes, you can have an abortion, but we are not in a position to provide you with counseling on that option,' '' Archer says.
Opponents of the regulations say doctors who operate in this way could be sued for malpractice. HHS lawyers say courts will recognize that doctors are following federal guidelines and will dismiss such suits.
Archer says that the need for guidelines on family-planning counseling became evident following a study by the General Accounting Office of Congress, in which the GAO ``found a significant number of clinics that were not complying with the nondirective component of counseling.''
In other words, says Archer, clinics were found to be steering women toward abortion.
How to comply
Enforcement of the guidelines will fall to HHS's 10 regional health administrators, who will report to Archer. Before the new guidelines go into effect, each Title X clinic that intends to keep its federal funds must submit a proposal for how it will comply - whether by pledging not to discuss abortion or by describing how it will separate its activities.
If HHS administrators get reports that a clinic is violating its pledge, HHS will investigate.
According to some abortion-rights advocates, these regional administrators - who support family planning and are not interested in seeing clinics lose their Title X funding - could have been expected to look the other way at some infractions.
But threats by Operation Rescue, an extremist anti-abortion group, to test clinics by sending in fake clients have had a chilling effect. One clinic in California has received telephone threats and another has already faced a fake client (albeit prematurely).
Clinics that consistently violate the regulations will lose their Title X funding, but not other federal monies such as Medicaid, as had been rumored, says Archer.
For the Planned Parenthood Federation of America (PPFA), whose clinics receive more than $30 million of Title X's $144 million budget, the question of enforcement is moot, because clinics that do not plan to uphold the federal rules will forgo their subsidy. So far, at least three Planned Parenthood affiliates - in Wisconsin, northern New England, and New York City - have announced they will give up Title X funds if Congress fails to overturn the speech rules.
Action in Congress
Most clinics around the country are waiting to see what Congress does, and, if that effort fails, to see any further clarifications from HHS on the regulations. How HHS defines ``separate'' when it speaks of separate facilities will be key. For many clinics, the cost of setting up separate services in another building would be prohibitively expensive. Convenience for patients, most of whom are poor, is also crucial.
Clinics in several states that operate under the Title X rules have managed to keep their subsidies and still discuss abortion with their clients, either through establishment of separate facilities or by passing off clients to nonfederally funded counselors.
One such clinic in Austin, Texas, reports that it has had no contact from HHS about the way it is operating. But PPFA president Faye Wattleton says she believes these clinics are violating the spirit of the Title X rules and therefore do not provide a model for how Planned Parenthood clinics might restructure themselves.