Democrats Eye Overturning Bush’s Provider Conscience Expansion

Mike Lillis

Democratic policymakers vowing to overturn a controversial new Bush administration rule that could limit women’s reproductive health options have several tools at their disposal to do so -– but party leaders aren’t revealing which they favor.

Democratic policymakers vowing to overturn a controversial new Bush administration rule that could limit women’s reproductive health options have several tools at their disposal to do so -– but party leaders aren’t revealing which they favor.

The new regulation — unveiled
by the Dept. of Health and Human Services (HHS) earlier this month —
expands the rights of some healthcare workers to withhold treatments
and counseling services, possibly including contraception, based on
their moral or religious sentiments. The White House argues that the
change — known as the “right of conscience” rule — is necessary to
clarify similar worker protections surrounding abortion and
sterilization procedures that already exist as law. But many Democrats
have joined women’s health advocates, healthcare providers and some
state officials in blasting the rule as a sweeping expansion of
existing statute that threatens women’s access to reproductive health

“Congress,” House Speaker Nancy Pelosi (D-Cal.) said in a terse Dec.
18 statement, “will work with President-elect [Barack] Obama to reverse
this rule.”

But party leaders aren’t saying how they’ll try to do it.
Representing one option, Sens. Hillary Clinton (N.Y.) and Patty Murray
(Wash.) introduced legislation last month that would simply prevent HHS from implementing the new rule. Reps. Diana DeGette (D-Col.) and Louis Slaughter (D-N.Y.) have vowed to introduce similar legislation in the House next year.

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“The Bush Administration continues to pursue its extreme ideology
over sound public health policies,” DeGette said in a statement earlier
this month.

Congress could also simply refuse to fund the new rule, which is estimated to cost $44 million.

Or they could nix it altogether by invoking an obscure law
— known as the Congressional Review Act (CRA) — which allows Congress
to reject White House regulations passed within 60 legislative days of
Congress’s adjournment. The law would leave Democrats several months
next year to kill the rule.

An advantage of the CRA route is that the vote would be exempt from
the dreaded Senate filibuster, which has snuffed dozens of Democratic
bills over the past two years. The disadvantage is that the measure
would have to stand alone and couldn’t be buried in another bill as a

Jessica Arons, director of the Center for American Progress’ Women’s
Health and Rights Program, said that invoking the CRA is not as easy as
it sounds, particularly when the issue relates to abortion.
Conservative-leaning Democrats might not support it, she said, and
party leaders might not have the political will to bring it up to begin

The Congressional fight could shift to the White House. The HHS
under Obama could simply propose a new regulation. Obama has already
criticized the rule, issuing a statement in August saying the change “complicates, rather than clarifies the law.”

“It raises troubling issues about access to basic health care for
women, particularly access to contraceptives,” Obama said. “We need to
restore integrity to our public health programs, not create backdoor
efforts to weaken them.”

Yet the issue could be a thorny one for Obama, who ran on a platform
of reaching across the aisle to Republicans. Despite his early
opposition to the rule, he might not want to make an abortion-related
issue one of his first battles, if only because it might threaten that
message of bipartisan healing.

Health care advocates point out that crafting a new White House
regulation would also be time-consuming, calling for periods of public
comment that could extend the process to six months or longer. The
legislative options, advocates say, could happen much more quickly.

Spokespersons in the offices of Pelosi and Senate Majority Leader
Harry Reid (D-Nev.) said that discussions over how to reverse the
regulation are underway, but no final decision has been made.

Plenty of laws on the books — both federal and state — already
protect health care workers from having to participate in abortion and
sterilization procedures based on moral or religious objections. The
new rule would expand those laws by forcing any healthcare entity
receiving federal dollars to attest that employees aren’t forced to
assist in practices and procedures they deem to be “morally coercive or

“A trend that isolates and excludes some among various religious,
cultural, and ethnic groups from participating in the delivery of
health care is especially troublesome,” the rule states, “when
considering current and anticipated shortages of health care
professionals in many medical disciplines and regions of the country.”

Yet the rule doesn’t specifically define which practices and
policies would be covered, leaving many lawmakers and women’s health
advocates to fear that contraception and other family-planning services
would apply. Additionally, the rule will apply to anyone who “assists
in the performance of a procedure,” a group defined broadly as anyone
who participates in “any activity with a reasonable connection to the
objectionable procedure, including referrals, training, and other
arrangements for the procedure, health service, or research activity.”

“It goes well beyond doctors and nurses to include almost anyone who
works in the health care sector,” said Arons of the Center for American
Progress. “It allows people to withhold relevant medical information
and not inform patients about all their options.”

HHS estimates the new regulation will affect roughly 572,000
health-related facilities, including hospitals, pharmacies,
laboratories and medical schools. The rule was published in the Federal
Register Dec. 18 and will take effect 30 days afterwards — just 48
hours before Obama takes office.

HHS did not return calls for comment.

There is also worry that the new rule will allow healthcare workers
to take jobs in certain facilities – a family planning clinic, for
example – for the sole purpose of withholding certain information,
counseling services or treatments they find objectionable. Tait Sye, a
spokesman for the Planned Parenthood Federation of America, pointed out
that, under the new rule, it would be difficult to identify such a

“Your boss doesn’t know,” Sye said. “The patient doesn’t know. The
hospital doesn’t know … No one knows. And it creates an enormous
potential for chaos.”

Meanwhile, states aren’t waiting around for Washington lawmakers to
act. In Connecticut, for example, state Attorney General Richard
Blumenthal is considering legal action to prevent the new regulation
from taking hold. Blumenthal says he’s worried that the change could
prevent victims of rape from receiving emergency contraception.

“We went through a very lengthy, painstaking, contentious process to
reach our statute in Connecticut which has worked well for everyone,”
Blumenthal told The Associated Press earlier this month.

Attorneys general from at least a dozen other states have joined
Blumenthal in their vocal condemnation of the new rule. More recently,
health officials and lawmakers in New Mexico, Iowa and Colorado are also weighing in with concerns.

The right-of-conscience rule is not the only regulation to be
ushered from the White House in recent weeks. Rules to ease
restrictions on mountaintop mining, expand oil shale development and
allow commercial fisheries to police their own polluting have all
emerged from the White House in the final moments of President George
W. Bush’s lame-duck term. Still, none has inspired the outcry of the
“right to conscience” rule.

“On its way out the door,” DeGette said, “the Bush Administration
has, once again, stubbornly and irresponsibly attacked Americans’
access to health care.”

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