Roundup: Final Draft of HHS Regs Dangerously Broad and Ambiguous

Brady Swenson

Final draft of HHS proposal is ambiguous and broad enough to allow doctors to refuse birth control; McCain unlikely to choose pro-choice running mate; Pastor who opposes abortion to deliver closing prayer at DNC; Telling back story behind the new Democratic abortion plank.

Final Draft of HHS Proposal Ambiguous and Broad Enough to Allow Doctors to Refuse Birth Control … The Bush Administration and Secretary Michael Leavitt of the Health and Human Services Department yesterday released the final draft of a proposed rule change, as reported here by Emily Douglas.  A look at the first wave of media coverage shows two frames emerging.  The Bush administration and Leavitt are arguing that the rule is strictly about expanding existing protections for the consciences of medical practitioners and they claim that "Nothing in the new regulation in any way changes a patient’s right to any legal procedure." The final version of the rule does not include the controversial section that redefined contraception as abortion.  But concern has quickly arisen that the "rule remains ambiguous enough to prompt more debate over whether
providers can refuse to provide some forms of birth control." 

Indeed Leavitt has admitted that medical practitioners would be free to make a legal challenge to establish the definition of abortion as contraception under the guise of the expanded "conscience" rules:

A draft of the rule, which surfaced last month, had a broad, explicit definition of abortion that seemed to include certain forms of contraception. That definition has been stripped from the proposed rule released yesterday.

But Mike Leavitt, secretary of the Department of Health and Human
Services, said some medical providers may want to “press the
definition” and make the case that some forms of contraception are
tantamount to abortion, the WSJ reports.

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Karen Brauer, president of Pharmacists for Life, said
she expects members of her group will do exactly that . "It would be
pretty excellent," she said, if states lost federal funding over laws
requiring pharmacists to fill birth-control prescriptions.

Both sides are admitting that the rule would allow legal challenges to state laws aimed at ensuring patient’s access to medical treatment. For instance state laws that require pharmacists to dispense, or refer patients to a pharmacy that will dispense, birth control could be struck down by courts under the new rule. Thirteen states currently have such a law on the books:

Activists on both sides of the debate said that
hospitals, insurers and HMOs may be able to use the regulations to
challenge other state laws, such as requirements that insurers include
contraception as part of prescription-drug benefits. Or the federal
government could force states to change those laws as a requirement for
federal funding. "We fear that’s possible," said Roger Evans, director
of litigation for Planned Parenthood.

Jessica Arons of Think Progress argues, in a piece republished here on Rewire, that the new rule drastically broadens the existing provisions for practitioner conscience contained in the Church and Weldon amendments:

While most of the regulation limits the scope of allowable moral
objections to training, performing, counseling, or referring for
abortion and sterilization, some sections are not so restricted.

Entities to whom this subsection 88.4(d) applies shall
not require any individual to perform or assist in the performance of
any part of a health service program or research activity funded by the Department if such service or activity would be contrary to his religious beliefs or moral convictions.

That seems to be an exception you could drive a truck through.

Also note the objections can be based not only on religious beliefs
but on any personal moral convictions. This is much broader than the
traditional conscience clauses, including those that allowed for
conscientious objectors during the Vietnam War.

Arons also importantly notes a broadening of those whose consciences are protected by the new rule:

Finally, the proposed regulation would extend protection from
doctors and nurses to just about anyone who might come into contact
with a patient, and even some who might not.

[A]n employee whose task it is to clean the instruments
used in a particular procedure would be considered to assist in the
performance of the particular procedure.

By that logic, an ambulance driver, a receptionist, and even the
person who processes health insurance forms might be able to refuse to
perform their jobs if related to a health care service they find
morally objectionable. Volunteers are explicitly protected too.

While Leavitt and the Bush administration claim that this rule’s sole end is to protect medical practitioners and their "assistants," they fail to acknowledge how patient’s care may be affected.  Consensus seems to be emerging that the rule’s broad definitions, and lack of definitions, allow room for individuals or institutions to eventually redefine contraception as abortion anyway and greatly broadens the umbrella of the conscience protections to include just about anybody in the employ of an HHS funded entity:

“Workforce” includes employees, volunteers, trainees, and other persons whose conduct, in the performance of work for a Department-funded entity, is under the control or authority of such entity, whether or not they are paid by the Department-funded entity.

These broadly ranging definitions have prompted concern from those seeking to defend access to comprehensive health care:

"Women’s ability to manage their own health care is at risk of
being compromised by politics and ideology," Cecile Richards, president
of the Planned Parenthood Federation of America, said in a statement.

The group, which had complained that earlier drafts of the regulation
contained vague language that might block access to birth control, said
it still has concerns about the latest version.

Parenthood continues to be concerned that the Bush administration’s
proposed regulation poses a serious threat to women’s health care by
limiting the rights of patients to receive complete and accurate health
information and services," Richards added.

The rule may be seen as such a threat to health care access because it also allows practitioners who object to medical procedures to refuse to refer patients to a doctor who can give them the information and care they need or are seeking:

… it goes far beyond defending a medical worker’s right to
refuse to perform an abortion — it also secures his or her right to
refuse to "refer for, or make other arrangements for, abortions." In
other words, a worker at a women’s clinic, perhaps the only one for
several hundred miles, can refuse to perform an abortion and refuse to refer the patient to someone who will. 

I also expect that a debate about conscience clauses and the right of refusal versus the rights of patients to access comprehensive health care will emerge.   Rev. Dr. Carlton Veazey wrote about this conflict of interest on Rewire recently:

We live in a religiously pluralistic society, and as a
nation we believe in protecting religious expression and freedom. With regard
to abortion and contraception, I believe this means we must accommodate both
the physician who objects to providing abortion services and the patient who
wants and need this service. A physician’s objection to abortion must never result
in a woman being denied a service she wants, needs and is legally and morally
entitled to.  

In this
clash of a healthcare provider’s conscience with a woman’s conscience, women will
lose. An ACOG ethics opinion states the
conflict well:

Although respect for conscience is important, conscientious
refusals should be limited if they constitute an imposition of religious or
moral beliefs on patients, negatively affect a patient’s health, are based on
scientific misinformation, or create or reinforce racial or socioeconomic inequalities.

Religious Coalition for Reproductive Choice supports this position as an
appropriate reflection of American religious and social values. Health
care professionals must provide information and care consistent with the
highest standards of scientific evidence and responsive to the needs and wishes
of individual patients — without ideological or theological restrictions.

What is clear in this early stage of the 30 day commenting period is that the final draft of the proposal has raised different and perhaps larger concerns than the leaked draft of the proposal that explicitly redefined contraception as abortion. The public may submit comments on the regulation during the next 30 days here or via email to [email protected]

McCain Unlikely to Choose Pro-Choice Running Mate … Although pro-choice politicians Tom Ridge and Joe Lieberman are reportedly on John McCain’s VP short list, The New York Times is reporting that McCain advisers are saying he is "unlikely to select anyone who supports abortion rights."

Pastor Who Opposes Abortion to Deliver DNC’s Closing Prayer … The Washington Post’s The Trail blog is reporting that Joel C. Hunter, a megachurch pastor from Florida, will deliver the closing prayer of this year’s Democratic National Convention.  The Trail characterizes the move as a continuation of the Obama campaign’s "aggressive outreach to evangelical voters."

"I’ll kind of be the elephant in the room, but it really says
something about how far Senator Obama is reaching out," Hunter said in
a phone interview today. "We are expanding the agenda of what’s
pro-life. When you consider poverty, environmentalism and war … those
are the issues that are being addressed by the Democratic Party."

was initially brought into the Democratic conversation through
discussions about the abortion language in the party platform organized
by Third Way, a progressive group that is trying to find compromises on
cultural issues. The group was in the background of tense negotiations
between Hunter, evangelicals and pro-choice groups during the
re-wording of the party platform that resulted in a strong affirmation
of Roe vs. Wade and an addition of language that encourages a reduction
in the number of abortions.

Rachel Laser of Third Way said Hunter’s inclusion proves "the Democratic Party is open to faith in a new way."

Back Story Behind the New Democratic Reproductive Health Platform Plank … In case you missed Steven Waldman’s look at how the Democrats’ new plank on reproductive health and abortion was developed, you should click over and give it a read now.   

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