Public Health Law Watch
An initiative of the George Consortium

Public Health Law Watch blog


Public Comment: HHS Proposed Revisions to Title X Funding Regulations

Yesterday, along with the George Consortium and in collaboration with the Center for Health Policy and Law at Northeastern University School of Law, we submitted public comments to the Dept. of Health and Human Services (HHS) regarding proposed revisions to Title X Regulations. We offer a reprint of the comments we submitted. 


Office of the Assistant Secretary for Health
Office of Population Affairs
Attention: Family Planning
U.S. Department of Health and Human Services
Hubert H. Humphrey Building, Room 716G
200 Independence Avenue SW
Washington, DC 20201

Re: Docket Number: HHS-OS-2018-0008, RIN: 0937-ZA00

Public Comment on Proposal to Revise Title X Regulations, Compliance with Statutory Program Integrity Requirements

Dear Assistant Secretary ADM Brett Giroir, MD:

The Center for Health Policy and Law at Northeastern University School of Law[1] and the Public Health Law Watch (PHLW)[2] appreciate the opportunity to make comments on the proposed Department of Health and Human Services (HHS) revisions to 45 CFR Part 59, “Compliance With Statutory Program Integrity Requirements.” The Center for Health Policy and Law is a university center of excellence focused on providing a rich context for students and researchers interested in myriad health-related topics, including public health law, health and human rights, health governance, bioethics, and drug policy. PHLW is a project of the George Consortium, a nationwide network of public health law scholars, academics, experts, and practitioners. It should be noted that these comments have been prepared by the Center for Health Policy and Law and PHLW, but do not represent the view of Northeastern University School of Law, Northeastern University, or individuals affiliated with either the Center or PHLW.

We offer comments on the proposed regulations’ failure to provide for exemptions or protections for providers whose conscience dictates that they counsel and provide medically-appropriate information about abortion and abortion-related services.

These proposed regulations seek, among other things, to eliminate the current requirement that Title X grantees “offer pregnant women the opportunity to be provided information and counseling regarding… pregnancy termination.”[3] On page 25506,[4] the “supplementary information” section invokes “conscience protections” as one justification for eliminating that provision. Specifically, it reasons that this provision conflicts with statutory “conscience protections” shielding health care personnel from engaging in practices conflicting with their moral and religious values. The commentary posits that eliminating the requirement to give women the opportunity to get information about abortion would solve any potential clashes between that provision and conscience provisions.

This reasoning, however, assumes that moral and religious conviction protections only apply when invoked against abortion. But that is simply not true. Dr. Willie Parker, for example, describes his mission to provide women with abortions as a Christian imperative.[5] Refusing to do so, he reasons, would be akin to the biblical Samaritan who refused to help a fallen traveler. An interfaith coalition blesses clinics that provide abortion for upholding the values of autonomy.[6] The late Dr. George Tiller, who was murdered in his church by an anti-abortion extremist, described his work of providing abortions as “a ministry.”[7] Others view providing abortions as a moral duty[8] to provide needed care to women who need help.[9] Some providers and health care workers believe their conscience requires adherence to professional and medical ethics, which require health professionals to provide all relevant, medically-appropriate information to patients, including when patients ask for a full range of family planning and/or abortion-related options and referrals, and when medically-appropriate even in the absence of explicit requests for such information or referrals by the patient.[10]

These proposed regulations change not only disregard the interests and rights of providers and patients whose consciences support ensuring transparency around and access to information related to abortion and abortion-related services, referrals, and counseling, they also ignore the fact that federal law protects the conscience of such providers. On page 25512,[11] the supplementary information section invokes the Church Amendments (codified at 42 U.S.C. 300a-7)[12] by describing its discrimination protections for health care professionals who refuse to perform abortions.  The notice for proposed rulemaking, however, fails to include, even in its footnoted quote of the law,[13] the provisions in the Church Amendments that explicitly also protect the professionals who do perform abortions, as well as those who counsel and/or refer patients to abortion services.[14] The law equally protects those with “reluctance or willingness to counsel, suggest, recommend, assist, or in any way participate in the performance of abortions or sterilizations contrary to or consistent with the applicant’s religious beliefs or moral convictions.”[15] The law recognizes that “religious beliefs or moral convictions” are not homogenous and do not operate solely in one direction. To be consistent with this provision of the law, as well as with the Department’s proposed conscience regulations[16], the Proposed Title X regulations should allow for health care providers whose conscience compels them to provide patients with full and medically-relevant information about their reproductive health options, including by providing them with clear and useful referrals to abortion services and providers, even in instances when patients do not explicitly request such referrals.


Center for Health Policy and Law
Northeastern University School of Law  

Public Health Law Watch  


[1] Center for Health Policy and Law,

[2] Public Health Law Watch,

[3] 42 CFR § 59.5(a)(5)(C) (2017).

[4] Compliance with Statutory Program Integrity Requirements, 83 Fed. Reg. 25502 (proposed June 1, 2018) (to be codified at 42 C.F.R. pt. 59).

[5] Stephanie Russell-Kraft, Reclaiming the Moral Imperative for Reproductive Choice. A Q&A with Dr. Willie Parker., The Progressive (Apr. 11, 2017),

[6] Caroline Kent, The Religious Coalition Blessing Abortion Clinics Across America, Broadly (May 10, 2018, 10:15 AM),

[7] Carole Joffe, Working with Dr. Tiller: Staff Recollections of Women’s Health Care Services of Wichita, 43 Persp. On Sexual And Reprod. Health 199-204 (2011).

[8] Elizabeth Reiner Platt, Many Doctors are Motivated by Their Moral and Religious Beliefs to Provide Abortions. Why Doesn’t HHS Care About Their Consciences?, Public Rights/Private Conscience Project Blog (Mar. 29, 2018), ,

[9] Holly Fernandez Lynch & Ronit Y. Stahl, Protecting Conscientious Providers of Health Care, N.Y. Times, (Jan. 26, 2018),

[10] See American Medical Association, Physician Exercise of Conscience, AMA Principles of Medical Ethics, I, II, IV, VI, VIII, IX (2016), See also American Academy of Physician Assistants, Guidelines for Ethical Conduct for the PA Profession (2013), .

[11] Compliance with Statutory Program Integrity Requirements, supra note 4.

[12] See 42 U.S.C. §300a-7 (2016).

[13] Compliance with Statutory Program Integrity Requirements, supra note 4.

[14] See 42 U.S.C. §300a-7(c) and (e). See supra note 12.

[15] Id.

[16] Protecting Statutory Conscience Rights in Health Care; Delegations of Authority, 83 Fed. Reg. 3880 (proposed Jan. 26, 2018) (to be codified at 45 C.F.R. pt. 88).



Jason Smith