The Clinton administration has finally acted to formally repeal the Reagan-Bush-era Title X "gag rule," which the president suspended through executive action during his first week in office. A long-awaited final rule, published in the Federal Register on July 3, reaffirms and codifies Title X's long-standing policy requiring counselors in federally funded family planning clinics to provide a woman facing an unintended pregnancy with nondirective counseling on all of her options and with referrals for services upon request.
The gag rule, originally promulgated in 1988, overturned that policy by prohibiting health care professionals in Title X family planning clinics from providing any abortion-related information or referrals, even when specifically requested to do so. Counselors instead were required to give all pregnant women referrals for prenatal care and delivery. In addition, the gag rule required physical and financial separation of any of a clinic's privately funded abortion-related activities from its Title X project activities.
Opposed by 78 major national health organizations, 36 state health departments and the nation's 25 schools of public health, the gag rule was challenged in court on the grounds that it interfered with medical providers' ability to discuss the full range of legal medical options with patients. The Supreme Court, however, voted 5-4 in Rust v. Sullivan in 1991 to uphold the rule as a permissible exercise of executive power. Shortly thereafter, by large margins in both the House and the Senate, Congress voted to repeal the gag rule but fell just short of the two-thirds majority necessary in the House to override then-president George Bush's veto.
President William J. Clinton suspended the gag rule in January 1993 through an executive memorandum. The president directed the secretary of health and human services to formalize this action through federal regulation. Accordingly, interim and proposed regulations were published in February 1993.
Because the gag rule was never fully implemented—due first to the various court challenges over the years and then to the publication of the interim rule—the long-awaited July 3 action is likely to have little impact on the administration of the Title X program in the short term. It does, however, codify with the force of law the mandate that pregnant women be offered neutral and factually accurate information about all of 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. Also critically important is the new rule's clarification that the financial separation of Title X activities from any non-Title X abortion services sufficiently demonstrates compliance with the law's prohibition on use of Title X funds for abortion; physical separation of abortion-related activities is not required.