Proposed rule expands reach of refusal laws
By Adam Sonfield
Senior Public Policy Associate
Guttmacher Institute
Washington, DC
The Bush administration announced in August that it was introducing a new regulation on the topic of providers' "conscience" or "refusal" rights. The announcement came after a month of public controversy over a draft of the regulation leaked in mid-July, as provider associations, advocacy groups, and policy-makers warned of its potential harm and as Department of Health and Human Services (HHS) Secretary Michael Leavitt asserted that the regulation's intent was being misinterpreted.
Congress has enacted three refusal clauses over the past 35 years, which apply to some or all recipients of HHS funding and allow health care personnel and institutions to refuse to provide or assist in the provision of certain services if they object on moral or religious grounds.1-3 According to the proposed regulation, the administration believes there is widespread ignorance of providers' refusal rights under these federal laws.4 In response, the regulation purports only to clarify, raise awareness of, and require certification of compliance with existing federal laws; however, in "clarifying" them, opponents argue, the administration is redefining key terms and expanding the laws' reach.5-7
The three laws all specifically allow providers to refuse to participate in an abortion. Yet, in defining the term "abortion" to include any action that prevents the implantation of a fertilized egg, the July draft of the rule would have effectively included the birth control pill, other hormonal contraceptives, and the intrauterine device.8 Although preventing implantation is not their primary mode of action, these methods may sometimes act post-fertilization. Defining abortion in this manner would be contrary to long-standing federal precedent and to the consensus of the medical community.9
In his official blog on Aug. 7, Leavitt denied that his intent was to define contraceptives as abortion.10 He asserted that he asked for regulations to be drafted in response to a dispute with two associations for obstetricians and gynecologists over an ethical opinion that Leavitt worried would force physicians to refer patients for abortions.11 Yet, the proposed version of the regulation did not put an end to the issue by including a medically accurate definition of abortion. Instead, it drops the definition entirely, as well as what had been an extensive description — as part of the "problem" to be solved — of state laws and policies that mandate insurance coverage of contraceptives, require sexual assault victims' access to emergency contraception, and guarantee access to contraceptives at pharmacies. This ambiguity leaves a door open for antiabortion activists who conflate most modern contraceptives with abortion, and Leavitt himself acknowledged that such efforts will continue.6
Draft to expand scope
The proposed regulation, like the earlier draft, also would expand the scope of the existing laws in terms of who is granted refusal rights and for what activities. By broadly defining key terms, laws targeted at doctors, nurses, and other professionals who are directly involved with a given procedure now would apply to any employee or volunteer of a health care institution participating in "any activity with a reasonable connection" to that procedure.
The expanded refusal rights would encompass the provision of information and counseling on topics and treatments that health care personnel find objectionable. Notably, in its description of the purported problem, the July draft referred to a recent finding that 86% of physicians see themselves as obligated to present information on all of a patient's medical options, even those the physician opposes — an obligation necessary for patients to provide their informed consent.12 The expanded scope of the regulation also would include clerical and janitorial work and a host of other activities, without any attempt to include the careful balance between the religious rights of workers and the practical needs of employers and their clients maintained by current civil rights law and legal precedent.
By expanding the scope of federal refusal rights, the regulation, if it were adopted, could impair the ability of health care institutions to employ staff members willing and able to appropriately serve their clients. The proposed certification and enforcement mechanisms would add to these difficulties, by imposing new layers of red tape and by providing additional opportunities for reproductive health opponents to harass providers.
What are the prospects?
Many congressional supporters of reproductive health, reacting to the July draft of the regulation, called on the Bush administration to scrap the regulation entirely, including more than one-quarter of the House and the Senate, among them House Speaker Nancy Pelosi, Senate Majority Leader Harry Reid, and Sen. Barack Obama.13,14 Provider associations, including the American Medical Association, the American Nurses Association, and the American Academy of Pediatrics also have written in opposition.15,16 The proposed version of the regulation appears likely to generate similarly vocal opposition.
The time frame for the regulation is a condensed one. A memo issued in May by White House Chief of Staff Joshua Bolton asked that "except in extraordinary circumstances," final regulations should be issued by Nov. 1.17 Not much time remains before that deadline; the administration has set a 30-day public comment period, through Sept. 22, which must be followed by the administration's review and response to the comments, as required by federal law.
References
- 42 USC § 300a-7.
- 42 USC § 238n.
- P.L. 110–161, div. B, § 508(d), 121 Stat. 2209, Dec. 26, 2007.
- 73 Fed Reg 50,274 (Aug. 26, 2008).
- Stein R. Workers' religious freedom vs. patients' rights. The Washington Post, July 31, 2008:A1.
- Simon S. Rules let health workers deny abortions. The Wall Street Journal, Aug. 22, 2008:A3.
- Stein R. Protections set for antiabortion health workers. The Washington Post, Aug. 22, 2008:A1.
- Department of Health and Human Services. Draft regulation, circulated on July 14, 2008.
- Gold RB. The implications of defining when a woman is pregnant. Guttmacher Rep Pub Pol 2005; 8:7-10.
- Leavitt M. Physician conscience. Secretary Mike Leavitt's Blog, Aug. 7, 2008. Accessed at secretarysblog.hhs.gov.
- Department of Health and Human Services. HHS Secretary Calls on Certification Group to Protect Conscience Rights. Press release. Mar. 14, 2008. Accessed at www.hhs.gov/news.
- Curlin FA, Lawrence RE, Chin MH, et al. Religion, conscience, and controversial clinical practices. N Engl J Med 2007; 356:593-600.
- Lowey NM, Waxman H, DeGette D, et al. Letter to President George W. Bush, July 21, 2008.
- Murray P, Clinton HR, Boxer B, et al. Letter to Secretary Michael O. Leavitt, July 23, 2008.
- Maves MD, American Medical Association. Letter to Secretary Michael O. Leavitt, July 23, 2008.
- American Academy of Family Physicians, American Academy of Pediatrics, American College of Nurse Midwives, et al. Letter to Secretary Michael O. Leavitt, July 30, 2008.
- Bolten JB. White House, issuance of agency regulations at the end of the administration, memorandum for the heads of executive departments and agencies. May 9, 2008.
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