This guest post was submitted by Christopher Dodson. He is the executive director and general counsel of the North Dakota Catholic Conference.
On May 22, 2018, the U.S. Department of Health and Human Services (DHHS) proposed revisions to the Title X family planning program. These changes will allow North Dakota agencies to follow long-standing state law restricting the use of taxpayer funds for abortion referrals. Governor Burgum, however, has yet to express support for these changes.
The proposed rules make several important changes, including:
- Prohibiting Title X projects from performing, promoting, referring for, or supporting, abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure an abortion;
- Requiring that Title X projects be physically and financially separate from prohibited abortion activities; and
- Ensuring that all Title X projects comply with all state and local laws requiring notification or reporting of child abuse, child molestation, sexual abuse, rape, incest, intimate partner violence, or human trafficking.
The first change should be of particular interest to Governor Burgum. None of the current Title X grantees in the state perform abortions and all comply with reporting requirements.
The North Dakota Department of Health is the state’s grantee of Title X funds. It then distributes those funds through fourteen service sites.
North Dakota Century Code section 14-02.3-02 states: “No funds of this state or any agency, county, municipality, or any other subdivision thereof and no federal funds passing through the state treasury or a state agency may be used as family planning funds by any person or public or private agency which performs, refers, or encourages abortion.”
Versions of this statutory language have existed since 1979. However, the regulations governing the implementation of Title X have through most its history required Title X projects to refer for abortions upon request. These regulations directly conflicted with North Dakota law and the will of North Dakota citizens. Because Title X is a federal program, the federal regulations prevailed pursuant to the Supremacy Clause of the U.S. Constitution. (Valley Family Planning v. State of N.D., 661 F.2d 99, 8th Cir. 1981)
The proposed rules would, therefore, allow North Dakota to once again fully implement its own laws concerning family planning programs. The Legislative Assembly has revisited the issue several times and, except for making minor revisions, has chosen to maintain the non-referral provisions. In 2003 the legislature adopted a joint resolution urging Congress to restore the state’s right to enforce its laws on family planning programs. Other state programs not subject to the Title X regulations, such as the human trafficking victim services program, maintain North Dakota’s policy of not funding abortion referrals.
The new regulations would allow North Dakota to fully enforce its own laws and prevent taxpayer dollars, state employees, and state contractees from providing support and referrals for abortion.
Since May representatives from different pro-life and pro-family organizations have written or met with officials from the Burgum administration and asked that the Governor and the North Dakota Department of Health submit written comments to DHHS in support of the new rules. As of this date, however, Governor Burgum has said nothing about the proposed revisions.
The revisions would not change how North Dakota uses or distributes family planning funds except when it comes to preventing the use of taxpayer funds for abortion referrals — a policy the state has adopted since 1979 and enforces in other programs. In one respect, this issue is not about family planning or abortion. It is about whether the state can fully implement its own laws passed by its own legislature. That is something Governor Burgum should support.
The public comment period for the proposed rules ends July 31, 2018.