B The Political Storms over Family Planning: Supplement to Chapters 1 and 7

Jeannie I. Rosoff

President, The Alan Guttmacher Institute

One of the more surprising political developments of the past decade has been the resurgence of political and legislative controversy over family planning, an issue that most thought had been settled some 25 years ago by the overwhelming congressional approval of the Family Planning and Population Research Act of 1970—Title X of the Public Health Service Act. This, however, was not to be.

The year 1994 marked the ninth consecutive year that this federal program, intended to equalize opportunity of access to family planning services, proved unable to secure a formal congressional authorization. This is not to suggest that public and congressional support for family planning or the provision of family planning services to the needy (however defined) had in any way lessened. On the contrary, the program continued to be supported by federal appropriations year after year even in the absence of a legislative authorization (although at increasingly lower levels because of the small but steady erosion due to inflation). In the mind of its champions on Capitol Hill, however, it was clear that the consideration of any family planning legislation was bound to bring forth a raft of hostile amendments (some of which might have survived the legislative process), making it hazardous to bring up the subject altogether. However, the November 1994 election of a new, more conservative U.S. Congress makes the prospects for the continuance of the Title X program, at least in its current form, dim at best. If it is retained at all as a federally administered program, it is likely to be further weakened, if not eviscerated, by amendments from its handful of opponents unlikely to be checked by the new Republican leadership. On the other hand, it may be caught in a wave of consolidation of federal



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--> B The Political Storms over Family Planning: Supplement to Chapters 1 and 7 Jeannie I. Rosoff President, The Alan Guttmacher Institute One of the more surprising political developments of the past decade has been the resurgence of political and legislative controversy over family planning, an issue that most thought had been settled some 25 years ago by the overwhelming congressional approval of the Family Planning and Population Research Act of 1970—Title X of the Public Health Service Act. This, however, was not to be. The year 1994 marked the ninth consecutive year that this federal program, intended to equalize opportunity of access to family planning services, proved unable to secure a formal congressional authorization. This is not to suggest that public and congressional support for family planning or the provision of family planning services to the needy (however defined) had in any way lessened. On the contrary, the program continued to be supported by federal appropriations year after year even in the absence of a legislative authorization (although at increasingly lower levels because of the small but steady erosion due to inflation). In the mind of its champions on Capitol Hill, however, it was clear that the consideration of any family planning legislation was bound to bring forth a raft of hostile amendments (some of which might have survived the legislative process), making it hazardous to bring up the subject altogether. However, the November 1994 election of a new, more conservative U.S. Congress makes the prospects for the continuance of the Title X program, at least in its current form, dim at best. If it is retained at all as a federally administered program, it is likely to be further weakened, if not eviscerated, by amendments from its handful of opponents unlikely to be checked by the new Republican leadership. On the other hand, it may be caught in a wave of consolidation of federal

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--> programs into block grants, thereby losing its national identity and character (and most of its funding). Nevertheless, it can now be seen, at least in retrospect, that under the apparent early consensus about family planning, there lurked a number of either unanticipated or unresolved issues that were to fester over a period of years and that are still, in part, unresolved. The first unresolved issue is that the term family planning itself lacked and, to a lesser extent, still lacks a clear, commonly agreed on definition. As representatives of the Roman Catholic Church stated repeatedly during the congressional hearings that preceded the passage of Title X, the postponement of childbearing, the spacing of children, and the limitation of family size—what most people viewed as "family planning"—could be achieved in many ways: by periodic sexual abstinence (the only method approved by the Roman Catholic Church), by contraception, by contraceptive sterilization, by abortion, or by all four means of fertility regulation at different times or under different circumstances in anyone's life. At the time, the fact that there were numerous ways to achieve one's desired family size may have appeared irrelevant to Congress: in the mid- or late 1960s, abortion was illegal in nearly all states and the use of contraceptive sterilization among the general population was low. The Title X legislation included "comprehensive, voluntary" family planning services, but without specification. It did contain a provision, adopted at the request of the U.S. Catholic Conference, prohibiting the use of Title X funds "in programs where abortion is a method of family planning." The Conference Report that accompanied the legislation further specified that the funds could be used "only to support preventive family planning services, population research, infertility services, and other related medical, informational, and educational activities." Thus, although the prohibition on the use of family planning funds for abortion was clear, the inclusion of contraceptive sterilization could only be inferred by a careful interpretation of the phrasing "preventive family planning." The only unambiguously endorsed means of family planning (beyond periodic abstinence) was contraception, as defined and understood at the time, but this was no small achievement given a century or more of religious and public controversy and the continuing opposition of some religious organizations. Historical Background Until the middle of the twentieth century, all religious denominations had condemned contraception as immoral. Largely because of the crusading activity of Anthony Comstock, the U.S. Congress in 1873 enacted a statute prohibiting the shipping of contraceptives (and of information about contraception) through the mail on the grounds of obscenity. Numerous states followed suit, passing

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--> laws banning the display, advertising, sale, and distribution of contraceptives. (Condoms, however, were exempted from the general ban because of their essential prophylactic role in the protection of men against "venereal" infection.) Although partially invalidated by court decisions or largely ignored in practice, these laws were to remain on the books until the middle 1960s, when they were declared unconstitutional by the U.S. Supreme Court. The federal statute itself, although not in force, was not officially repealed until 1972, 2 years after the passage of Title X. The first major religious endorsement of contraception in the United States took place in 1931, when the Federal Council of Churches of Christ in America declared: As to the necessity for some form of effective control of the size of the family and spacing of children, and consequently of the control of conception, there can be no question. It is recognized by all churches and physicians. There is general agreement that sex union between husbands and wives as an expression of mutual affection without relation to procreation is right [italics added]. A consensus among Protestant denominations and Jewish religious groups grew rapidly in the following decades. The consensus was that the use of contraception was necessary to achieve "responsible parenthood" and that the responsibility for family limitation and child spacing had been delegated by God to the parents to be exercised in the light of their individual circumstances and informed consciences. This consensus among some religious denominations failed, however, to bring about any changes in the position of the Roman Catholic Church, in spite of intensive ecumenical efforts to bring about a rapprochement about doctrinal and other matters among major Christian faiths. Although the Roman Catholic Church did endorse the concept of responsible parenthood, it insisted that every act of sexual intercourse between husband and wife be "open" to the possibility of conception and to oppose all methods of "artificial" contraception. In 1964, Pope Pius XII appointed the Commission on the Study of Population, the Family, and Births to review the position of the Catholic Church on contraception. The commission, with representatives of the laity, the scientific and medical communities, and theologians and members of the top hierarchy of the Catholic Church, did eventually recommend, after a 2-year period of deliberation and by a sizable majority, the approval of all medically appropriate methods of fertility regulation with the exception of abortion and contraceptive sterilization. Contrary to the commission's recommendations, however, the Pope reaffirmed, via the 1967 Encyclical Humanae Vitae, the Catholic Church's ban on sterilization and abortion and also on all forms of contraception, as distinct from periodic sexual abstinence, which is considered a licit method of family planning.

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--> During these years, the legitimacy of the use of fertility regulation methods was discussed in the public arena only in the context of marriage. Indeed, in an attempt to avert the specter of sexual license, the terminology used by advocates attempted to stress this point. Even Margaret Sanger, the editor of the Woman Rebel and the founder of the American Birth Control League, renamed her organization the Planned Parenthood Federation of America, and in some common parlance, family planning and planned parenthood became terms often used interchangeably. Both terms, by inference at least, assumed sexual activity to occur only between married monogamous persons jointly establishing a family and planning the birth and spacing of their children. At the same time, however, sexual and family mores were undergoing fundamental change with the gradual postponement of the age of marriage, the increased incidence of cohabitation outside of marriage, as well as steep increases in rates of marital disruption and divorce. The corollaries of these trends were substantial increases in the length of the interval between the initiation of sexual activity and marriage (now an average of 10 years among young men and 7 years for young women) as well as more sexual activity occurring outside of marriage. Under these circumstances, the use of family planning methods to prevent unwanted conceptions acquired a euphemistic connotation, when the purpose of using contraception was far removed from the desire to plan one's family but rather the purpose was to avoid starting a family at all. These developments were accompanied in many of the mainline Protestant and Reform Jewish organizations by an examination or re-examination of the essential nature of relationships—marital or otherwise—with the emphasis on the morality of sexual relationships shifting somewhat from a strict prohibition of all intercourse outside of a religiously sanctioned marriage, to the importance of such relationships being non-exploitative and being based on a commitment between equal partners to mutual support and growth. The Catholic Church and a number of fundamentalist Protestant churches continue to maintain that any sexual activity outside the bounds of a properly sanctified marriage is by definition impermissible and sinful. Moreover, as the involvement of fundamentalist churches in the political process has grown over the last two decades, their views on sexual morality have come to exert a potent influence on the direction of public policy. It is important to note, however, that their members are not normally opposed, in principle, to the use of contraception or contraceptive sterilization within the confines of marriage; however, their opposition to the provision of contraceptive services to unmarried individuals (particularly teenagers), to school-based sex education including instruction on contraception, and to abortion has been strenuous. Although many Catholics ignore their church's admonitions regarding sexual morality, including the use of contraception, sterilization, and abortion, many members of Protestant

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--> fundamentalist groups are likely to organize and campaign militantly for the supremacy of their positions. Religious and moral considerations aside, policymakers have been faced with very concrete issues demanding immediate and practical decisions. For example, under Medicaid (Title XIX of the Social Security Act [SSA]) the federal government reimburses the states for a portion of their expenditures for "necessary medical services" on behalf of the eligible population. Abortions and sterilizations, if they are deemed necessary by the attending physician, could therefore be paid for routinely by the states and reimbursement could be claimed from the federal government. As the use of contraceptive sterilization increased among the general population, its popularity also rose among Medicaid recipients, and demand for the procedure grew.1 Abortions began to be reimbursed after a dozen states legalized abortion or reformed their abortion laws between 1967 and 1973; claims also increased after the U.S. Supreme Court decision of 1973. At the same time, Congress adopted amendments to the SSA in 1972 that specifically required the states to provide "family planning services and supplies" to all Medicaid recipients desiring these services, including "minors who can be considered sexually active." To encourage the states to do so, Congress also provided a preferential federal matching rate to the states of 90 percent. In June 1973, a few months after the landmark Supreme Court decision legalizing abortion throughout the United States, the U.S. Department of Health, Education and Welfare (now the U.S. Department of Health and Human Services) published a set of regulations intended to implement the 1972 SSA amendments. These regulations described the purpose of family 1   The debate over sterilization that took place in the 1970s did not focus on its legitimacy as a method of birth control, but rather on its potential for coercion and its actual coercive use among minority or low-income women. Although the overall rate of contraceptive sterilization is not substantially different among the poor than among the more affluent population, it is heavily skewed by age and sex. Among the poor and minorities, among whom the use of vasectomy is minimal, virtually all contraceptive sterilizations are undergone by women. Also, sterilizations tend to take place at relatively young ages among women who start childbearing early and often experience repeated unintended pregnancies. Thus, thorough counseling as to the permanent nature of the procedure is particularly important for this group of women who may come to regret their decision if they experience a change in circumstances later in life or a change of heart. However, in some instances, counseling has clearly been perfunctory, offered, for example, during the throes of childbirth. There have even been reported instances of operations performed without the consent or knowledge of the patient. In 1978, to prevent such abuses, federal regulations were promulgated that require documentation of full informed consent and a waiting period of 30 days between the time that the patient's consent is obtained and the surgery is actually performed.

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--> planning as the ability of individuals to freely "determine the number and spacing of their children" and the family planning services themselves as "any medically approved means" to achieve that end. By inference, at least, this definition would have included not only all of the contraceptive modalities approved by the U.S. Food and Drug Administration but contraceptive sterilization and abortion as well. An immediate controversy ensued, with some groups demanding positive assurance that sterilization and abortion be covered unambiguously and others objecting vehemently to the apparent inclusion of abortion. The final regulations were never promulgated, essentially leaving the states free to provide their own definitions. By 1976, the year of the first Hyde amendment, named after Representative Henry Hyde of Illinois, which prohibited the use of Medicaid funds for abortion, roughly one-third of the states were claiming federal reimbursements for Medicaid abortions under the family planning rubric. After 1973, the controversy over abortion proceeded along two separate and parallel paths: (1) attempts to reverse the Supreme Court's decision on abortion through the adoption of a constitutional amendment (a prospect that has been dormant since 1983) and (2) a successful ban on the use of federal funds for abortions, first and foremost for Medicaid-eligible women. A by-product of these debates was the intrusion of the abortion issue into what most people viewed as "family planning" or, more narrowly, contraception. In the early legislative proposals to ban the use of federal monies to reimburse the states' expenditures for abortion under their Medicaid programs, the ban would have extended to the use of "abortifacient" drugs and devices. Although the specific drugs and devices were never precisely defined, they were widely claimed to include such artificial methods as oral contraceptives and intrauterine devices (although their modes of action do not normally interfere with the fertilized ovum). In rallying opposition to the proposed ban, pro-choice groups seized on this potential threat to methods of birth control used by millions of American women to help defeat the proposals in their entirety. This issue resurfaced many years later during deliberations of the Supreme Court in the Webster case concerning the continuing legality of abortion. At that time, the pro-choice attorney argued before the Supreme Court that the "bright line, if there ever was one (between contraception and abortion), has been extinguished" by the newer birth control methods. Justice Scalia concurred that it is indeed "impossible to distinguish between abortion and contraception when (abortion is defined) as the destruction of the first join of the ovum and the sperm." Indirectly, these various maneuvers served to blur what many people and policymakers had heretofore believed to be clear lines of demarcation between contraception, the purpose of which is to prevent pregnancy, and abortion, which is intended to terminate a pregnancy that has already occurred. Underlying the ambiguity of the modes of action of certain types of fertility control is

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--> that the definition of what constitutes "pregnancy" is itself contested. Given the fact that the fertilized ovum in its early stages of division is both an unstable and a fragile entity, the medical and scientific definition of pregnancy is generally defined to be the time at which the process of the implantation of the blastocyst in the uterine wall has been completed, approximately 14 days after fertilization has taken place. On the other hand, some contend that the defining event is the moment of fertilization or conception. The use of "morning after" drugs and the development of RU-486 further confound the debate as to what properly marks the beginning of individual human life, what defines the state of pregnancy, and the possible "abortifacient" effect (depending on one's definitions) of certain means of fertility control techniques heretofore popularly believed to belong to the realm of contraception. The desire of many politicians and much of the public at large was to (in the words of Senator Orrin Hatch of Utah) "erect a wall of separation" between contraception and abortion. This approach was tested on yet another front in 1988 when the Reagan administration promulgated regulations that prohibited federally funded family planning clinics from making referrals for abortion even at the request of women themselves. This ignored the fact that women facing an unintended pregnancy may be contraceptive users whose method failed or who had failed to use the method properly or consistently. These women as well as women who were not using contraception at all at the time that they became pregnant accidentally were likely to turn for help to the agencies or facilities whose business is the prevention of unintended pregnancies. The desire to, in effect, pigeonhole women into two categories, responsible contraceptors and wanton individuals without regard for human life, proved ultimately to be neither realistic nor politic. Even in the face of repeated veto threats on the part of President Bush, Congress came closer year by year (and, in 1992, within a few votes) to overriding this policy by the necessary two-thirds majority. However, this issue may well be rekindled in the present Congress as part of the House Republicans' "Contract with America," which seeks to prohibit the provision of information about abortion to welfare recipients. Conclusion Review of these developments leads to several conclusions. The first is that the development of public policy is both slow and deeply conservative in nature, particularly when it comes to matters within the rightful province of religious and personal morality. The second is that euphemisms, although they may help gain the superficial acceptance of new and potentially threatening concepts and values, also bring their own built-in backlash when the magnitude of their implications becomes better understood. The third is that, although largely ignored by its own communicants and perhaps because of dwindling political

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--> significance, the position of the Catholic Church continues to affect the behavior of significant community and quasi-public institutions. Although they may be supported in large part by tax monies, Catholic hospitals and the equally extensive Catholic social services network are bound, by the very nature of their affiliation, to refuse to provide services deemed ''illicit" or even to refer their quasi-public clients to other facilities, assuming that they are available elsewhere in the community. Finally, although it is probably true that most Americans do not view abortion "as a method of family planning" in the sense that they would make a deliberate decision to use it as such, it is also clear that neither in science, in practice, nor in law is there a "bright line" to be drawn or a "wall of separation" to be erected in "matters so fundamentally affecting a person as the decision whether to bear or beget a child," in the words of the U.S. Supreme Court.