Bush is the ex-boyfriend we’ve finally gotten out of our life only to
discover he left an unpleasant souvenir, like an STD. A
particularly nasty strain too, in the form of new HHS regulations.
The HHS regulations were a last minute, hastily executed,
unconstitutionally vague, attempt by Bush to repay his only loyal
constituency left, the religious right wing. The regulations attempt
to expand health care workers right to "consciously object" to the
broadest array of health care services imaginable, basically anything,
even in medical emergencies. They can, in other words, refuse to
provide you medical care, because it offends them! It opens the door
to many patient abuses, shreds state laws and contradicts federal
discrimination statutes. Healthcare workers would be able to withhold
information from a patient about healthcare options without the
patient even knowing that any information is being withheld. Patients
can be refused referrals if the healthcare worker objects to the care
they’re seeking somewhere else.
And here is one particularly bizarre twist. The regulations specify
that workers don’t have to inform their employers of the service or
services they object to before hand. It’s also unclear the extent to
which employers have the right to ask job applicants about their
willingness to take part in the services they provide. Thus, imagine
the situation in which an anti-choice person applies for a position at
Planned Parenthood. Her employer couldn’t ascertain that she’s against
abortion, nor could it fire her when she refused to have anything to do with it.
But the regulations’ real intent (revealed in a draft version of the
proposal leaked this summer) is perhaps worse: to allow those who want
to obstruct a woman’s access to birth control full license. Keep in
mind, there is already ample protection for those who do not wish to
take part in abortion services, three laws in fact. The right to refuse
to take part in abortion services has existed for over 30 years. Here’s
the thrust of the new regulations (in my own words), "If you’d like to
consider contraception an abortion method and refuse to take part,
please do, but also feel free to object to contraception, or any other
health care service, for any reason you can dream up. The only thing
limiting your right to refuse is your own imagination." Your conscience
is yours. Use it how you want. Even if it infringes on the conscience
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Perhaps we shouldn’t be surprised at anything (but, perhaps, the
timing). The new regulations are the final revenge of an
administration long hostile to women’s rights and health. And this
last abusive act will literally take affect in the final minutes of
the Bush administration, the morning of inauguration day.
As Connecticut attorney General Richard Blumenthal explained, "On the
way out, the Bush administration has left a ticking political time
bomb that is set to explode literally on the day of the president’s
inaugural and blow apart women’s rights." Yesterday Blumenthal joined
the National Family Planning & Reproductive Health Association
(NFPRHA), which represents many county and state health departments
and providers, and Planned Parenthood Federation of America in filing
lawsuits asking the federal court to block the regulations from taking
affect. Blumenthal filed a lawsuit on behalf of his state and six
others (CA, NJ, IL, MA, OR, RI) alleging that the regulations violate
federal law, women’s rights and states’ sovereign rights to enforce
their own laws.." It’s particularly ironic that Bush trampled on
states’ rights, something he once professed to value above all else.
The states have particular cause to worry. The federal regulations
could be used to argue that state laws are unenforceable, like those
mandating contraceptive coverage (the law in 27 states) or the
provision of emergency contraception to rape victims (the law in 13
Bush, as is his way, ignored staunch, diverse and thoughtful
opposition. He dismissed resistance even from within his own
government. Over 200,000 individuals and organizations weighed in
during the public comment period, most opposing the regulation. They
pointed out that the regulations could throw an entire system into
For instance, the American Hospitals Association, not a group known
for taking controversial positions, explained,
Hospitals and their emergency departments are complex entities; as the proposed rule is written, it would be extremely difficult for
hospitals to anticipate all the scenarios under which a health care
worker might invoke the provider conscience clause. As a result it
would be impossible for hospitals to make the staffing arrangements needed to ensure access to those services. The [American Hospital Association] is concerned that access to services for patients may be significantly hampered by the current definitions of this rule.
Blumenthal and 12 other state attorneys general jointly offered this comment,
The proposed regulation completely obliterates the rights of patients to legal and medically necessary health care services in favor of a single-minded focus on protecting a health care provider’s right to claim a personal moral or religious belief … By focusing exclusively on the personal moral and religious beliefs of the health care provider, the proposed regulation unconscionably favors one set of interests, upsetting the carefully crafted balance that many states have sought to achieve … We urge the HHS to adhere to a basic medical tenet—first, do no harm to the patient—and withdraw the proposed regulation.
During the public comment period, even Bush’s own administration—in
this case, the agency charged with protecting against discrimination
including in matters of religious freedom–came out in opposition to
the regs. EEOC Commissioners Stuart J. Ishimaru and Christine M.
The proposed rule is unnecessary to protect the religious freedom and freedom of conscience of healthcare workers, because Title VII already serves that purpose…The issuance of the proposed regulations would throw this entire body of law into question, resulting in needless confusion and litigation in an attempt to redefine religious freedom rights for employees in the healthcare sector…
Bush’s team brushed aside all criticism, indifferent to protests,
thoughtful or otherwise. They behaved like a kid doing a book report
who hadn’t read the book, to paraphrase one Planned Parenthood lawyer.
They were obligated to respond to comments and so they did, not caring
whether their responses were coherent or consistent. In fact, at one
point they said they agreed with Title VII, which guarantees, among
other things, the right to exert one’s conscience in the work place,
and at another they suggested they’d like to reinterpret the act.
The contradictory message was clear in this: We are immune to
criticism. Moral certainty has always trumped evidence or "outside"
opinion among the Bushies. It seemed determined to stick to its guns
all the way out the door.
And so the Obama administration enters office with a thatch of new and
purposely vague regulations on its books. Obama may be a pro-choice
president but Bush has tried to tie his hands. Sadly, Obama can’t
merely reverse the regulations with a stroke of his pen, though he has
indicated he would like to. The process to undo regulations is as
time-consuming as it was to push these through. Especially, if a
government is responsive to criticism. Fortunately, the pro-choice
lawyers with their attorney general colleagues have moved decisively
to block implementation until the courts can review the regulations.
An injunction is likely to follow soon.
Util the regulations are definitively overturned, many of those who
have thrived at the margins of the law, in the vaguenesses that Bush
has consistently pushed, may continue to feel empowered.
There was recently, for example, the case of a nurse who removed a
patient’s IUD every time she was supposed to adjust one. She’s against
birth control. And though she claimed the repeated removals were
merely "accidents," under the HHS regulations she might not have to.