Debate over adoption promotion’ in clinics

By Cynthia Dailard

Senior Public Policy Associate

Alan Guttmacher Institute, Washington, DC

In May, the House of Representatives overwhelmingly passed an omnibus children’s health bill (H.R. 4365) that contains the "Infant Adoption Awareness Act," a provision largely directed at pregnancy-options counselors in Title X family planning clinics. The provision, included in the children’s health bill at the insistence of House Commerce Committee chairman Tom Bliley (R-VA), represents a hard-fought compromise between family planning advocates and antiabortion legislators seeking to "promote" adoption in family planning clinics.

Bliley first signaled his intent to place the issue on the Congressional agenda last year when he and Rep. Jim DeMint (R-SC) introduced "The Adoption Awareness Act" (S.2511), a bill purporting to correct what the sponsors perceive to be an "anti-adoption bias" among federally funded pregnancy counselors. The legislation would have required Title X and other federally funded health care providers to undergo mandatory training — or risk losing federal funds — in "adoption counseling" and "promoting" adoption.

Family planning advocates strongly opposed the DeMint/Bliley bill. First, they argued, the Title X program already requires family planning providers to provide basic information to pregnant women interested in learning more about adoption, along with a referral to a licensed adoption agency. Requiring family planning clinics to provide the much more specialized service of adoption counseling and to assume functions historically performed by adoption agencies necessarily would have diverted resources away from the provision of family planning services to low-income clients. Second, they contended, the goal of promoting adoption stands in sharp contrast to existing Title X guidelines that require family planning providers to offer "nondirective" counseling about all of the options available to women facing a crisis pregnancy in a manner that is free from bias or judgment. Third, the bill redefined "nondirective counseling" to exclude abortion, thus imposing a gag on Title X providers.

Review the history

Such efforts to promote adoption in family planning clinics to the exclusion of any information about abortion are not new. They hearken back to the 1988 "gag rule" regulation promulgated by the Reagan administration, which barred counselors in Title X clinics from discussing abortion as one of the alternatives available to women facing an unplanned pregnancy and from referring women to a provider of abortion services — even when a woman specifically requested such information. At the same time, counselors were required to give all patients referrals for prenatal care and delivery services.

The gag rule was opposed by 78 national organizations, including the American Medical Association in Chicago and the American College of Obstetricians and Gynecologists in Washington, DC, as well as 36 state health departments, on the basis that it violated Title X providers’ First Amendment right to free speech and the doctor-patient relationship. The U.S. Supreme Court, however, rejected those arguments in 1991, when it voted 5-4 in Rust v. Sullivan to uphold the regulations as a permissible exercise of executive power.

The next year, Congress moved to repeal the regulations, but fell 10 votes short of the two-thirds necessary to override President Bush’s veto. Challenged again on procedural grounds, the gag rule ultimately was in effect for only one month. As one of his first acts in office, President Clinton suspended the regulations in January 1993.

When Bliley announced his intention to include S.2511 in the omnibus children’s health bill pending before the House of Representatives, family planning advocates entered into behind-the-scenes negotiations to remove its most onerous provisions. Those negotiations were successful.

The language that was ultimately included in the children’s health bill and passed by the House does not mention adoption counseling and does not contain a gag. Instead, it would fund adoption organizations to train counselors in Title X clinics and community health centers "in providing adoption information and referrals to pregnant women on an equal basis with all other courses of action included in nondirective counseling" (emphasis added). Participation in the training would be voluntary, and clinics that don’t participate could not lose their federal funds. Adoption organizations and family planning providers would collaborate to develop best-practice guidelines on the provision of adoption information and referrals to pregnant women. Within one year following enactment, the Secretary of the Department of Health and Human Services would be required to submit a report to Congress evaluating the extent to which adoption information and referral upon request are provided by family planning clinics "in order to determine the effectiveness of the training."

The Senate is likely to consider its own version of the children’s health bill in the coming months. It is not yet clear whether it will include an adoption provision.