Use of Indian Health Service Funds for Abortions

Refer to: OD

1. PURPOSE.

   This circular establishes Indian Health Service (IHS) policy on the use of IHS funds for abortions. Pursuant to 25 United States Code (U.S.C.) § 1676(a), the IHS must abide by the limitation on the use of funds pursuant to the “Hyde Amendment”[1].

2. BACKGROUND.

   On January 27, 1982, the IHS published regulations imposing restrictions on performance of abortions (47 Federal Register 4016-01, currently codified at the Code of Federal Regulations (C.F.R.), Title 42 Section 136.51, et seq.). These regulations allowed the use of IHS funds for abortions only when a physician certified that the life of the mother would be endangered if the fetus were carried to term (42 C.F.R. § 136.54). These regulations implemented the IHS program authority, pursuant to 25 U.S.C. § 13, 42 U.S.C. § 2001, to be consistent with the then current Hyde Amendment. The IHS regulation was published to make the agency's performance of abortions consistent with other agencies that were subject to the limitation found in the Department of Health and Human Services (HHS) appropriations.

   However, in fiscal year 1994, the Hyde Amendment expanded to include additional circumstances for which funding abortions is permissible, including exceptions if the pregnancy is the result of an act of rape or incest, or in the case where the pregnant person suffers from a physical disorder, injury, or illness that would, as certified by a physician, place that patient in danger of death unless an abortion is performed.[2]

   Thus, the IHS regulation is inconsistent with the current Hyde Amendment as well as 25 U.S.C. § 1676. It is clear that, since the regulation’s promulgation in 1982, Congress has intentionally broadened the exceptions to the limitation on the use of funds for abortion to include instances of rape or incest, and has altered the requirement for when the life of the pregnant person may be considered an exception. Congress has also specifically made that applicable to the IHS, via 25 U.S.C. § 1676(a). The IHS regulation cannot override the clear statutory mandate.

   Moreover, state law does not apply to IHS authority to perform abortions, pursuant to 25 U.S.C. § 13, 42 U.S.C. § 2001, or the use of federal funds to perform abortions. Given the authority that Congress vested in the HHS and the IHS, the position of the IHS is that states cannot take actions that are preempted by federal law, including but not limited to: 1.) compelling IHS federal staff to take any action inconsistent with the scope of their official duties; 2.) prohibiting the use of IHS funds for authorized Purchased/Referred Care (PRC) services; 3.) prohibiting IHS patients from accessing authorized services; and 4.) compelling access to IHS records.

3. AUTHORITIES.
   1. 25 U.S.C. § 1676; 25 U.S.C. § 1676(a)
   2. 25 U.S.C. § 13, 42 U.S.C. § 2001
4. POLICY.

   It is the IHS’s policy to ensure that its employees are carrying out services consistent with Congressional intent and to the maximum degree of flexibility allowed by federal law.

   The following guidelines should be used to determine those circumstances where it would be authorized for IHS appropriations to be expended for abortions. The IHS funds may be used to pay for or otherwise provide for abortions if:

   1. A physician has found and certifies as part of the medical record that "on the basis of my professional judgment the pregnant person suffers from a physical disorder, injury, or illness that would place that patient in danger of death unless an abortion is performed;" or;
   2. A physician has certified as part of the medical record that the pregnancy is the result of an act of rape or incest.

   Because the majority of medical procedures during pregnancy, including abortions, are provided to IHS beneficiaries by non-IHS providers, federal funds may be authorized to pay such providers to perform medical procedures, including abortions, as described above. Authorization of such federal funds must be made pursuant to the IHS PRC regulations at 42 C.F.R. 136.21, et. seq.

   Nothing in this policy prohibits IHS from providing accommodations to providers who maintain a sincerely held religious objection to abortion.

5. SUPERSEDURE.

   This policy supersedes the Indian Health Manual (IHM), Special General Memorandum 96-01, “Current Restrictions on Use of Indian Health Service Funds for Abortions,” dated April 12, 1996 and any conflicting sections of the IHM, Part 3, Chapter 13, “Maternal and Child Health."

   These guidelines will remain in effect as long as the applicable statutory restrictions on the use of IHS funds for the performance of abortions remains the same pursuant to 25 U.S.C. § 1676. In the event that the statutory restrictions are modified, the statute overrides this policy. 

6. EFFECTIVE DATE.

   This IHS Circular is effective upon the date of signature.

[1] Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriation Act, 2022, Pub. L. No. 117-103, §§ 506-07 (2022).

[2]Id.

Distribution: IHS-wide
Date:06/30/2022