O.C. Joins State Effort to Skirt Abortion Gag Rule

A White House policy that bars family planning clinics from discussing abortion with patients will be tested by 220 clinics in California whose administrators have devised a plan to technically comply while thwarting the intent of the so-called gag rules.

The rules, first imposed by the Reagan Administration and continued by President Bush, have survived four years of court challenges, congressional assaults and presidential tinkering. Opponents say the gag rules deny women information about their legal rights.

Clinic officials in California are gambling that the Bush Administration will accede to their plan rather than tangle anew with the abortion issue during a close presidential race. Bush is an avowed foe of abortion and has repeatedly vetoed legislation lifting the gag rules, but Republicans who support abortion rights have expressed growing discomfort with the Administration’s stance.

“The intent was to muzzle us, but we are very committed to continuing to provide our clients with comprehensive family planning information,” said Carol Classic, executive director of Planned Parenthood of Central California.

The California clinics’ plan hinges on bookkeeping maneuvers that the administrators hope will meet federal restrictions while leaving abortion counseling and other services intact. Put simply, the clinics want to use their federal money to pay for contraceptive counseling and other federally approved services, while using state and private funds to pay the salaries of staff who counsel pregnant women.

Planned Parenthood officials and clinic administrators in Orange County said they plan to implement the strategy as well.

“It works very easily,” said Barbara Jackson, director of public affairs for Planned Parenthood of Orange and San Bernardino counties. “We will be able to document that we are billing the state for pregnancy options counseling and referrals. We believe strongly that all options should be presented to women faced with an unintended pregnancy.”

Marcia Vickery, director of the Orange County Center for Health, said that her agency would simply forgo any future federal aid in order to continue offering its pregnancy counseling services.

“We will continue to provide a woman with any option she asks about that is legal,” Vickery said.

The accounting plan was crafted to meet a Sept. 23 deadline for implementing the federal rule. Previous deadlines have come and gone without enforcement because of legal challenges mounted by family planning advocates.

Federal officials declined comment, saying the plan offered by the California clinics is under review.

Clinic administrators in California have been outspoken opponents of the abortion gag rules, bolstered by a state law that directly contradicts the federal mandate. To receive state family planning funds, clinics here must agree to include abortion among the options presented to pregnant women.

Thomas C. Kring, executive director of the California Family Planning Council, said more than a year ago that the clinics would forfeit federal assistance rather than deny women full discussion of their pregnancy options. The clinics decided to try the new plan after a favorable court ruling and recent Bush Administration wavering on the rule’s scope.

“We are just going to do it until they tell us we can’t,” said Kring.

Clinics in other states are watching with interest, according to Judith DeSarno, executive director of the National Family Planning and Reproductive Health Assn., which represents 90% of the nation’s federally funded family planning agencies.

“I don’t know of anyone who is not going to try to find a way to accept the federal dollars, and still give pregnant women access to all their choices,” DeSarno said.

At stake nationally is about $150 million--California’s share is $12 million--in family planning funds under Title 10 of the Public Health Services Act. About 4,000 clinics that annually serve about 4 million poor women and teen-agers count on the grants to meet their operating expenses.

The controversy actually centers on a much smaller group--roughly 200,000 women who seek pregnancy testing and counseling at these clinics.

Clinic operators say most of these women have little notion of the political and philosophical arguments mounted in their behalf.

“Many of our patients read at no more than the third-grade level and about 40% do not speak English,” said Kay Truesdale, executive director of Family Planning Program Inc., which serves about 7,000 women in rural Tulare County.

The original law, passed in 1970, prohibited using abortion “as a method of family planning,” but the federal rules guiding the law’s use permitted doctors and nurses to inform pregnant women that abortion was one of their options.

In 1988, President Ronald Reagan ordered the rules changed to explicitly prohibit all discussion of abortion, even if patients asked for information. The rules then were interpreted as binding on all of the clinic’s services, not just on those paid for with federal money.

Family planning advocates challenged the legality of the rules, but the U.S. Supreme Court upheld the regulations in 1991. Congress took up the cause, with many members outraged by what they considered judicial and administrative tampering with the law’s original intent.

Legislation specifically requiring abortion counseling has since been passed several times--most recently last month. But Bush successfully vetoed the earlier bills and is expected to do so again. The Senate Appropriations Committee voted 26 to 0 Thursday to impose a moratorium on implementing the rules.

An attempt by Bush last March to modify the rules is the basis of a new legal challenge by family planning advocates.

Responding to criticism that doctors would be unable to properly care for patients when, for example, a pregnancy was life-threatening, Bush exempted clinic doctors from the rules, saying they could discuss abortion with patients, but nurses and other family planning staff could not.

The advocates contend in their lawsuit that such a substantive change in the rules cannot be accomplished by presidential memorandum but requires public hearings. Last May 28, they won the first round when a U.S. District Court judge in Washington, D.C., enjoined the government from enforcing the rules, pending the outcome of the case.

The government, however, successfully appealed the judge’s order, clearing the way for implementation of the rules. The actual case will not be argued until next month, but veterans of the four-year battle are skeptical that a court ruling will end the controversy.

“This has been going on since Feb. 2, 1988, and I see it as an issue that will take us all into retirement,” said James Hauser, the regional Department of Health and Human Services officer charged with reviewing California’s implementation plan.

An additional murky aspect of the rules is whether federally funded family planning services can be provided in clinics where abortions are performed. The rules require “sufficient physical and financial separation” between services financed by Title 10 and actual abortion services. But federal officials have not defined what “sufficient” means.

“We are still working on that,” Hauser said. “There are probably about 30 or 40 issues on this . . . thing alone. Is it in the same building? Upstairs? Shared parking lot? Shared staff? Same entrance?”

Times staff writer David Haldane contributed to this story.