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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
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grantees have an understanding of the statute and how to comply with it. The Department rejects as without merit the comments that these grantees were accepting Title X funding for years without complying with statutory requirements. Neither the 2019 rule itself nor any comments to the 2021
NPRM cited evidence of widespread noncompliance.
D. Application of Conscience and Religious Freedom Statutes to Title X
Comments: The Department received thousands of comments on the preamble language concerning the application of the conscience statutes to Title X. As further discussed in the NPRM, Congress has passed several laws protecting the conscience rights of providers, particularly in the area of abortion. For instance, under 42 U.S.C.
300a7, the Church amendments, grantees may not require individual employees who have objections to abortion to provide such abortion counseling, or those who have objections to sterilization procedures to perform, assist in the performance of, or provide counseling regarding sterilizations. Since 2005, Congress has also annually enacted an appropriations rider, the Weldon amendment, which extends non-discrimination protections to other health care entities who refuse to counsel or refer for abortion.
See, e.g., Consolidated Appropriations Act, 2021, Public Law 116260, Div. H, section 507d 2020. Under these statutes, objecting providers or Title X
grantees are not required to counsel or refer for abortions.
Many commenters expressed a belief that the statutory conscience protections prohibited the agency from promulgating any counseling or referral requirements. Conversely, some asserted that the conscience statutes have no bearing on what requirements Title X
could impose on grantees by regulation.
Many comments asserted that these statutes had to be incorporated into the Title X regulatory text for them to be operative or the rule to be lawful. Some stated that the statutes themselves violated the separation between church and state. Several other comments cited a concern that applications from providers objecting to abortion counseling or referral would not be favorably evaluated. Many also suggested that the Department should simply allow for abortion counseling and referral rather than requiring it, since the conscience statutes protect objecting providers from those requirements in any case.
Beyond the Church and Weldon Amendments, a few comments also
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stated that requiring abortion counseling or referral automatically violated the Religious Freedom Restoration Act RFRA, 42 U.S.C. 2000bb through 42
U.S.C. 2000bb4. At least one comment suggested that the counseling and referral requirements coerced speech in violation of the First Amendment for those providers who object.
Response: The conscience statutes have been the subject of multiple rulemakings and numerous lawsuits in the last 13 years. Most recently, the Department finalized a rule in 2019
providing definitions and an enforcement mechanism for several statutes protecting medical providers who have conscience-based objections to certain activities. Protecting Statutory Conscience Rights in Health Care;
Delegations of Authority, 84 FR 23170
May 21, 2019. That rule was vacated by three different courts. New York v.
HHS, 414 F. Supp. 3d 475, 536
S.D.N.Y. 2019 appeal in abeyance;
Washington v. Azar, 426 F. Supp. 3d 704, 722 W.D. Wash. 2019 same; City & Cty. of San Francisco v. Azar, 411 F.
Supp. 3d 1001 N.D. Cal. 2019 same.
While the statutes may at times interact with the requirements of Title X, interpreting these laws is beyond the scope of this rule and the HHS Office for Civil Rights OCR has been delegated authority to receive complaints under these provisions.
Moreover, as the DC Circuit pointed out when the Weldon Amendment was enacted and the 2000 Title X rule was in effect, a valid statute always prevails over a conflicting regulation, Natl Family Planning & Reprod. Health Assn v. Gonzales, 468 F.3d 826 D.C. Cir.
2006. This is true whether an overriding statute is incorporated into regulatory text or not. The applicability of other rules and laws are best evaluated by consulting those rules and laws and then seeking guidance from the agencies responsible for implementing them. Particularly in areas where the administrative rules may be modified or statutory directions may change from appropriation to appropriation, it is unwise for OPA to formalize interpretations beyond its own statutory authority.
Irrespective of the points made above, as recounted in the NPRM, objecting individuals and grantees will not be required to counsel or refer for abortions in the Title X program in accordance with applicable federal law. OPA has long worked with grantees and providers to ensure appropriate compliance with conscience laws as well as continuity of care. As stated above, OCR has been delegated authority to receive any complaints
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related to the conscience protections and will continue to enforce them. As discussed in the NPRM, recognition of provider conscience rights has been the position of the Department since before the 2000 rule. See 65 FR at 41274 2000
rule, stating that under 42 U.S.C. 300a d, grantees may not require individual employees who have such objections to provide such counseling.. However, as also discussed in the 2000 final rule, the Secretary was unaware thenand is still unawareof any current grantees that object to the requirement for nondirective options counseling. Id.
Just as non-objecting providers should not dictate the provision of information and referrals by those who do object, the existence of statutory conscience protections for providers does not preclude other willing providers from providing referrals or counseling for abortion within the program. With this final rule, the Department is emphasizing the importance of ensuring access to equitable, affordable, clientcentered, quality family planning services. Client-centered care is defined as being respectful of, and responsive to, individual client preferences, needs, and values, and ensures that the clients values guide all clinical decisions. With an emphasis on providing services that are client-centered, the default should be the fullest provision of information to clients. Providers may avail themselves of existing conscience protections and file complaints with OCR, which will be evaluated on a case-by-case basis as is done with other complaints.
As noted in previous iterations of both sets of rules, the conscience provisions and Title X rules have existed side by side for decades with very little conflict, or even interaction.
From 1993 to 2017, Title X received no reports of grantees or individuals objecting to the regulatory requirement to counsel or refer for abortions when requested. See Natl Family Planning &
Reprod. Health Assn, 468 F.3d at 830
There are structural reasons to doubt that the issue will ever come up. In 2000
HHS Secretary Shalala declined to create a specific exception from the pending Title X regulations mandatory referral requirement for organizations resisting provision of abortion counseling or referrals; she explained that she was unaware of any current grantees that object to the requirement for nondirective options counseling, so this suggestion appears to be based on more of a hypothetical than an actual concern.. As with any issue facing Title X grantees and applicants, the program will work to provide guidance to grantees and coordinate any
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