Oppose the Vitter Amendment to the FY 2004 Labor-HHS Appropriations Bill

Dear Representative:

The American Civil Liberties Union urges you to oppose an amendment which may be offered by Representative David Vitter (R-LA) during today's mark up of the FY 2004 Labor/HHS/Education Appropriations Bill.  This amendment would prohibit the disbursement of Title X family planning funds to any ""private grantee, delegate, or clinic that provides chemical or surgical abortion.""  Although Title X has always specified that its grants cannot be used to fund abortions, the Vitter amendment goes much further.  It prohibits any organization from receiving Title X funding if that organization uses non-Title X resources -- including private funds -- to provide abortion services to its clients.  This amendment is both unwise as a matter of public health policy and unconstitutional as a matter of law.   

• The Vitter amendment endangers the provision of critical family planning and reproductive health care services for low-income women.  

Enacted more than thirty years ago, Title X is the only federal program devoted solely to the provision of family planning services nationwide.  The vast majority of women seeking care at Title X-supported clinics are low-income women.  Currently, although organizations may not use Title X dollars to fund abortions, they may use other resources, including private monies, to do so, so long as they provide these services in programs that are separate from their Title X programs.  The Vitter Amendment would put these health care providers in an untenable position.  They would be forced either to stop providing Title X family planning services or to cease providing abortions.  The latter option has grave consequences at a time when abortion services are simply not available in 86% of counties in the country.  The former option -- denying providers the Title X funds they need to offer the critical care they have long provided -- is equally unacceptable.  

• Federal law already prohibits abortions and abortion-related activities in projects that receive Title X funds.  

Since its inception, the Title X statute has included a prohibition on abortions in the programs it funds.  Additionally, HHS rules and regulations prohibit abortion-related activities in Title X projects, such as providing transportation for an abortion, making an appointment for a client seeking an abortion, explaining and obtaining signed abortion consent forms from clients interested in abortion, negotiating a reduction in fees for an abortion, or advocating for abortion rights through lobbying or litigation.  Current law also already requires separation between Title X projects and abortion-related activities.  No violation of the prohibitions on abortion-related activities has ever been identified over the program's 30-year history.

• The Vitter Amendment is a draconian penalty on hospitals that provide limited abortion services.

The Vitter Amendment would bar private hospitals that perform even one abortion for any reason from receiving Title X funds to provide contraceptive services.  Over 560 private hospitals across the U.S. report that they perform abortions.  In addition, the vast majority of hospitals perform abortions under limited circumstances, such as when a woman's life is endangered.  It makes no sense from a public health perspective to bar these hospitals -- and other private agencies -- from receiving Title X funds to provide the contraceptive services needed to avoid future unintended pregnancies and abortions.  But under the Vitter Amendment, entities performing even one abortion for any reason would be ineligible for family planning funds through Title X. 

• The Vitter Amendment is unconstitutional. 

In addition to risking the provision of vital services for women, the Vitter Amendment violates the Constitution.  The amendment improperly conditions the receipt of federal funding on a party's agreement to forego the exercise of a constitutionally protected right.  It automatically disqualifies from Title X eligibility any organization that provides abortions using wholly non-federal resources.  The Supreme Court has clearly held that such a prohibition is an unconstitutional condition on non-federal dollars.  

In Rust v. Sullivan, 500 U.S. 173 (1991), for example, a case involving the Title X program, the Supreme Court held that although Congress could prohibit the use of Title X dollars for abortion-related activity, it could not constitutionally bar the recipient of Title X funds from engaging in abortion-related activity in other projects financed wholly by non-Title X dollars.  The Vitter Amendment goes well beyond a restriction on the activities of the Title X project itself.  It bars the recipient of Title X funds from engaging in abortion-related activity in programs that are funded by wholly non-Title X dollars.  The Vitter Amendment is therefore not a permissible restriction on the Title X funds themselves, but a condition on the non-federally funded activities of a Title X recipient that, as Rust makes clear, cannot survive constitutional scrutiny.

For all of these reasons, the ACLU urges you to oppose the Vitter Amendment when it is offered during today's Committee mark up.      

Sincerely, 

Laura W. Murphy
Director

Gregory T. Nojeim
Associate Director and Chief Legislative Counsel