Recently the New York Times and RHRealityCheck reported
on a leaked internal proposed regulation that calls for more and
different enforcement of anti-discrimination provisions for health care
providers. The provisions are forms of conscience clauses that do not
allow discrimination in hiring or promotion of health care workers who
do not wish to perform abortion or sterilization (or indeed in the
reverse, no discrimination against those who do perform abortions or
sterilizations) in federally funded settings.
The draft regulation
(PDF) goes into detail outlining the history of the laws protecting the
conscience of health providers and entities and then outlines the
problem. It seems that the central concern is not discrimination
against those who won’t perform abortions, but that the US Department
of Health and Human Services sees a real problem with requiring health
professionals (and anyone in the healthcare workforce) to be involved
with contraception, even if it is part of the job. The majority of the
section outlining “The Problem” concerns states that have passed laws
or issued executive orders requiring pharmacies to dispence
contraception, including emergency contraception, and that require
hospitals to provide emergency contracption to rape victims.
From the regulation:
In 2005, Illinois Governor Rod Blagojevich issued
executive orders requiring “a retail pharmacy serving the general
public [… to] dispense the contraceptive, or a suitable alternative
permitted by the prescriber, to the patient or the patient’s agent
without delay,” over the objection of pharmacist groups
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In May 2007, Connecticut passed a law requiring all hospitals to
distribute Plan B to rape victims, despite religious rganizations’
objections to the abortifacient nature of the drug.9
A New Jersey law requires pharmacies to fill prescriptions “despite any
conflicts of employees to filling a prescription and dispensing a
particular prescription drug or device due to sincerely held moral,
philosophical or religious beliefs.”10
Massachusetts11 and New Mexico12 have passed laws similar to the
laws and executive orders in Connecticut, Illinois, and New Jersey.
These are problems? Serious enough to issue new enforceable regulations about infringing people’s conscience on abortion?
When the Administration overruled scientific staff at FDA and
outside experts regarding bringing emergency contraception, it seemed
clear to me that we were facing an attack on all contraception. Given
that the vast majority of people in the United States support access to
safe and effective contraception, and indeed the vast majority of
people of reproductive potential have used or use contraception in some
form, this is not a subject we should be arguing about at the federal
The fact that emergency contraception was so controversial that it
took over 3 years and 3 FDA commissioners before it was even partially
approved for those 18 and older told us that those opposed to
contraception (although a small group of people) had disproportionate
influence in this government. Despite the scientific and medical
evidence, the administration still sees contraception as something to
When Plan B was partially approved, the first thing to notice was
that the sky did not fall. Adult women have access to another form of
contraception, another option if regular contraception failed or if the
woman was raped.
But clearly the war on contraception is not over. That same small
group of highly influential people who want to limit access to
contraception are back at work within HHS. They’ve now worked to
broaden the definition of abortion to include contraception contrary to
the definitions of the American Medical Association and the American
College of Obstetricians and Gynecologists. In part they base it on a
poll from 2001.
A 2001 Zogby International American Values poll revealed
that 49% of Americans believe that human life begins at conception.
Presumably many who hold this belief think that any action that
destroys human life after conception is the termination of a pregnancy,
and so would be included in their definition of the term “abortion.”
This strikes me as an unfounded assumption. Most people do not
think use of oral contraceptives, injectable contraceptives or an
intrauterine device (IUD) are forms of abortion, even with full
understanding of the possibility that sometimes the mechanism of action
may involve reducing the likelihood of implantation of a fertilized
egg. Most people understand that contraception acts prior to pregnancy
(as defined by implantation in the uterus) and that abortion is
termination of an established pregnancy.
The leaked draft regulation also broadens who is protected by this
new regulation. Not just providers, but anyone involved in the
process, from appointment schedulers to those who clean the instruments
in a hospital, to the hospital itself all now can refuse to be involved
with their job, with federal protection, if the facility or clinic
It’s a good sign that this document was released early by someone
inside HHS, so that the public can get a head start in understanding
what is coming next from the Administration, when it comes to limiting
access to contraception. Another good sign for scientific integrity is
information that not all of the scientific and health agencies within
HHS agreed (”concurred”) with issuing this proposed regulation.
Whether or not such objections within HHS will block the release of
this regulation, it is important that the scientists and medical
experts within the Department raise their voices, and I congratulate
those who have done so. There are consequences in research and
development of new medical products and in infertility clinics if the
definition of abortion reaches back to fertilization. The scientific
and medical communities need to be heard on the impact of this change,
along with the voices of women and couples who stand to lose access to
safe and effection contraception.
This article originally published on The Pump Handle.