The Department of
Health and Human Services today formally released proposed regulations that Secretary Michael Leavitt claims
are necessary to protect health care providers and institutions who
decline to provide certain medical services because those services offend
After intense criticism in
the mainstream media and from millions of Americans, HHS has removed
an explicit redefinition of contraception as abortion from the regulation.
In so doing, the agency may have created a much larger problem.
Unlike the draft version leaked over a month ago, this version of
the proposed rule
does not invite providers to decide for themselves when pregnancy begins,
what an abortion is, what contraception does and give that provider’s
beliefs legal cover. But despite Secretary Leavitt’s insistence that "This regulation is not about
contraception. It’s about abortion and conscience," providers may
need no specific invitation.
The regulations now read,
"This lack of knowledge [of provider conscience law] within the health
professions can be detrimental to conscience and other rights, particularly
for individuals and entities with moral objections to abortion and other
medical procedures." "Contraception" falls nicely into the
category of "other medical procedures." Says the National Family Planning and Reproductive Health Association’s
Mary Jane Gallagher, "The proposed regulations,
and Secretary Leavitt’s public comments about them, leave the door
open as to whether institutions and individuals can deny access to contraception."
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The proposed regulations
may no longer imply that state laws in California, Massachusetts, Illinois
and elsewhere that require hospitals or pharmacies to dispense contraception
and emergency contraception are the very problem they’re seeking to
address – as the leaked version of the regulations did. But that doesn’t
mean the regulations as written wouldn’t undermine those laws anyway.
Targeting "provider conscience" can be a shell game for attacking
access to contraception and abortion if contraception and abortion are
what providers’ consciences are telling them not to provide. "While the rules are not identical
to the draft proposal being circulated by HHS last month, the agency…interprets existing conscientious objection laws so broadly that it
could result in women not receiving information they need to make informed
healthcare decisions," notes the Center
for Reproductive Rights.
At first blush, the new regulation may appear simply to create a certification process — at a taxpayer cost of $44 million — that requires providers to sign their compliance with existing provider conscience law, but it may in fact extend the reach of current law. Worrisome provisions proliferate
in the new regulations – for instance, that referral for services,
or indeed any information about the services being denied – is not required of
those conscience-bound providers.
The regulations also seem
to expand the definition of just who provides health care services.
The Department claims that it wants to define this "broadly," and will include those who do not provide but would assist in the provision
of services, including nurses but also those who, for example, "clean
the instruments" used for a procedure. What’s next, those
who stock the antiseptic ointment? Receptionists who make the
Perhaps most troublingly,
the "other medical procedures" cited in the regs could, of course,
extend far beyond abortion, contraception, or anything having to do
with women and reproduction. Could physicians morally object to
providing services to lesbians seeking infertility treatment (as the
California Supreme Court ruling recently declared they couldn’t)?
Could they object to serving IV drug users seeking HIV testing? What
about a Scientologist pharmacist asked to fill a prescription for Zoloft?
While the proposed regulation takes into careful account provider conscience,
no provision is made for protecting patients’ care.
In fact, one has to ask where in these regulations a patient’s
conscience is ever considered. The proposed regulations suggest that
health care providers or "entities" (inclusive of individuals,
institutions, organizations) won’t even be required to refer a patient
to another provider who would provide care. How will patients be able
to trust that they are getting accurate medical information? By not
requiring referral, the proposed regulations could mean that a rape
survivor in search of emergency contraception could not only be denied
service, but does not have any right to be told where she might be able
to obtain this legal service."This draconian regulation means that
women can be refused
care and information by the very people they trust to provide it," says
President of the National Partnership for Women and Families Debra
undermines the doctor-patient relationship because women will now have
to question whether their health care providers are giving them
complete and unbiased information, and the best care possible."
In the month since the draft
regulations were leaked, Secretary Leavitt has suggested repeatedly that the intention
of the regulations was not to define abortion or contraception, but
to narrowly address provider conscience. "[T]he issue I asked to
be addressed in this regulation is not abortion or contraceptives, but
the legal right medical practitioners have to practice according to
their conscience and patients should be able to choose a doctor who
has beliefs like his or hers. The Department is still contemplating
if it will issue a regulation or not. If it does, it will be directly
focused on the protection of practitioner conscience," he wrote on his
on August 11. But anyone concerned about whether, in a world of
expanded protection for practitioner conscience, patients seeking care
in accordance with their own consciences might be unable to access services,
was left cold by the thought experiment that followed. Secretary Leavitt
mused: "Is the fear here that so many doctors will refuse that it
will somehow make it difficult for a woman to get an abortion? That
hasn’t happened, but what if it did? Wouldn’t that be an important
and legitimate social statement?"
The regulations are now open
for 30 days of public comment, and must be finalized before becoming
As we’ve done for the
past five weeks, Rewire will continue to bring you the latest
news and analysis of the impact of the proposed HHS regulations. Experts in the field are looking over the proposed regulations
now, so stay tuned for more detailed analysis.