After Move in Congress Fails, Abortion-Rule Foes Look to Courts
WASHINGTON — AFTER four years and eight months of legal and legislative wrangling, a ban on discussion of abortion at federally funded family-planning clinics has finally gone into effect nationwide.
Last week, the regulation - which critics call the "gag rule" - survived Congress's latest effort to overturn it.
But the battle is far from over. A United States district court judge is expected to rule soon on a request for a temporary restraining order blocking the speech ban at clinics.
Another case will be heard Oct. 14 on the legality of the Bush administration's change in the regulation that allows doctors to discuss abortion but prohibits other health-care workers - who do most of the pregnancy counseling in clinics - from doing so. A ruling is expected in mid-November.
But for now, the vast majority of the 4,000 affected clinics are still discussing abortion as a legal option for pregnant women. Clinic directors know they are violating the spirit of the regulation, which went into effect Oct. 1, but say they are technically in compliance. Waiting for Clinton
"We're hanging on by our fingernails through the elections" and the outcome of continuing court action, says Judith DeSarno, executive director of the National Family Planning and Reproductive Health Association.
If elected, Democratic nominee Bill Clinton can, and has promised to, unilaterally eliminate the regulation. And even if Governor Clinton loses, a new Congress with a large freshman class sets up a new ballgame in efforts to override presidential vetoes of anti-gag-rule legislation.
Meanwhile, most clinic directors are stalling for time by fulfilling the rules in the easiest way they know how: setting up separate accounting books to show that pregnancy counseling costs, both the salary of the counselor and the cost of the counseling room, are not being funded through federal dollars.
Clinic officials interviewed throughout the country complain of confusion over how the Department of Health and Human Services (HHS), which runs the government's Title X family-planning program, would define compliance. They say the department has failed to answer their questions, and they have filed suit in US District Court saying the government cannot ask them to promise compliance without clearly defining up front what that entails.
"It makes us very, very nervous," says Betsy Render, director of the Wyoming Reproductive Health Council, which runs 19 Title X clinics. "We are trying to be in compliance with the law, but we can't be sure if what we're doing will satisfy HHS. Sanctions are a possibility."
If a clinic is found in violation of Title X rules and is unwilling to meet HHS standards, it would lose not only its Title X money but possibly other federal grant money, clinic officials say.
Some clinics have already withdrawn from Title X - either to make a point or because of concerns over the financial implications of being expelled. Of those who have left, some plan to make up the loss of money through private fund-raising and state funds.
Others will, or already have, cut back on services. Planned Parenthood of East Tennessee has shut down five of its eight clinics, for instance. Planned Parenthood of Wisconsin anticipates closing three clinics.
But no matter which path each Title X recipient has chosen, no one is happy. Those that have taken the separate-finances route live in fear that HHS will tell them they are in violation of federal rules and take away their funding, which in some programs can total more than half their budget.
In the 220 clinics of the California Family Planning Council, clients are now greeted by waiting-room signs stating that no federal funds are being used for pregnancy testing and counseling. In addition, every patient who comes in for a pregnancy test will sign a form saying the same thing.
"We're dealing with a hostile group - the Bush administration," says Tom Kring, the California council's executive director. "We'll go as long as we can like this."
At stake for California is more than $12 million of the $150 million the program grants each year to help poor women with family planning. If push comes to shove, Mr. Kring says, he will opt out of Title X. California state regulations mandate "full options counseling," including discussion of abortion if a patient desires, in order to receive state grants, and Kring's council gets five times as much money from the state as it does from Title X. So the choice is clear.
In some states - such as New York, Massachusetts, and Rhode Island - governors have stated they will replace lost federal funds with state money.
But other governors are not so sympathetic to abortion rights, and clinics in their states have little safety net.
At HHS, officials stress their commitment to Title X, and say they will work with clinics to bring them into compliance, not summarily deny funds if there are problems. Groups test compliance
And how will HHS find out about possible problems? The surest guess is that anti-abortion forces will send "testers" - pregnant women who say they want to talk about abortion - into clinics around the country to see how the clinics respond.
"Believe me, they will be out there, holding clinics responsible," says Margeaux Farrar of Operation Rescue National, a network of activist anti-abortion groups around the country. Any violations, Ms. Farrar says, will be reported to local HHS representatives.