New Federal Rule Stymies Clinics

Some try to find ways to comply with law without limiting speech; others turn down funds. ABORTION 'GAG RULE'

FOUR years after it was announced, a nationwide ban on discussion of abortion at federally-subsidized family planning clinics is about to go into effect.

But, despite a welter of Bush administration memoranda and statements designed to clarify the regulation, clinics remain uncertain as to what constitutes "compliance."

"Mass confusion is a good way to describe what's happening," says Severa Austin, executive director of Planned Parenthood of Wisconsin.

The result is that it appears most clinics will tell the Department of Health and Human Services that they will comply, and then will leave it up to HHS to tell them if their method of compliance is unacceptable.

One notable exception is Planned Parenthood of New York City, the lead plaintiff in the lawsuit challenging what it calls the "gag rule." PPNYC still maintains it will not to keep its $423,000 in Title X money, or 2 1/2 percent of its budget.

"The gag rule is still in place," says Alexander Sanger, president of PPNYC. "If we came up with a plan for compliance, it would send the wrong message."

Under the rules, clinics that receive funding under Title X of the Public Health Service Act have 30 days from the date of notification to tell HHS whether or not they plan to comply. For some Title X clinics, that deadline comes early next month. But the clinics must describe their strategies for compliance only if they are requested to do so by HHS.

In practice, what many clinics are thinking of doing - or already plan to do - is to establish two sets of accounting books, one for Title X activities and one for non-Title X. Any counseling that would involve discussion of abortion would be done by a counselor whose salary is covered by non-Title X money. The cost of the counseling room would also be covered by nonfederal money. HHS loophole

Some clinic executives point to clinics in a few states that have already been operating this way, without HHS complaint. They also point to a line in a March 20 HHS memorandum as potentially allowing discussion of abortion if it is separated from Title X finances.

"The regulatory requirements do not apply to grantee activities which are not a part of the Title X project," wrote William Archer III, deputy assistant secretary of HHS for population affairs.

Tom Kring, executive director of two California family-planning councils, is already separating the budgets of the councils' 89 agencies to accommodate the ban on abortion counseling, a process he calls "a paperwork nightmare."

His agencies get almost $14 million from Title X, or about a quarter of their budget.

"We'll find a way to live with it [the regulation] till they tell us we can't do it," says Mr. Kring.

Kring adds that in any counseling session where abortion is discussed, the counselor will inform the client that the session is not being paid for with federal money. That, he says, would protect against accusations by "testers" - women who are anti-abortion posing as clients - that the clinic is violating federal law. (Testers have already turned up at many clinics.)

When presented with examples of how a clinic might decide to carry out the regulations, Dr. Archer's Office of Population Affairs continues to say that it will rule on a case by case basis.

"The main thing is that we all stay in it together and not let the program go down the tubes," says Judith DeSarno, executive director of the National Family Planning and Reproductive Health Association Inc.

Joan Henneberry, Colorado's director of women's health, says she thinks the state will decide to comply. Problematic compliance

Ms. Henneberry believes that compliance would mean sometimes having to withhold information from women. Even if pregnancy testing were taken out of the Title X program, leaving birth control services in the program could lead to a conflict if an unexpected pregnancy test were necessary. If a woman turned out to be pregnant, a counselor would not be allowed to discuss abortion with her.

Colorado has little choice, says Henneberry. "Our state is not in a position to give up the money," which amounts to $1.5 million or about 28 percent of its family planning budget, she says.

Until recently, many clinic directors assumed the strictest interpretation of the rule and promised to forgo the money - even if it meant cutting back on services to poor women, which include providing birth control and testing for disease.

Women's health advocates maintained it would be immoral not to discuss with a pregnant woman all her options - and could even expose health workers to malpractice suits.

Now that zero hour has arrived, many women's health executives - including those in the Planned Parenthood network, which has staked out the most vocal anti-gag rule position - are backing off promises to give up the funding. Instead, they and their lawyers are combing the body of official memoranda and regulations looking for a way to comply, keep the money, and still not limit free speech. Clinics develop strategy

The strategy now appears to be to throw the ball back into HHS's court and make HHS go after the clinics, which is not likely to happen until after the November elections. In the meantime, some abortion-rights advocates hope, Congress may be able to build up enough votes to pass anti-gag rule legislation that is veto proof. After Easter recess, such a bill is slated to go to the House floor, but the prospects for reaching a two-thirds majority are doubtful.

In January, a new Congress with a large freshman class will be seated, which will mean a new ballgame on efforts to overturn the gag rule. And if an advocate of abortion rights is elected president, such as Bill Clinton, Congress would need only a simple majority to overturn the regulation.

But for now, family-planning directors who do decide to keep Title X money face a public relations dilemma. After all the public angst over how keeping the money and "gagging" counselors would be immoral, clinic directors are likely to face charges that they've compromised themselves.

"That's a real challenge," says Allie Stickney, executive director of Planned Parenthood of Columbia-Willamette, Oregon. "It will mean explaining the ins and outs of government funding. But we'll also show who's putting us in this position. It's the government that's caused this agony."

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