Obama Administration Repeals Portions of Bush “Provider Conscience Rules”

Jodi Jacobson

Today, the administration issued a final ruling on the "provider conscience" regulation put in place by Bush Administration in 2008, rescinding the rule equating contraception with abortion.

Today, the Obama Administration issued a final ruling on and guidance for a “provider conscience clause,” first proposed by the Bush Administration in July 2008 and put into effect in the waning hours of the administration’s existence.

The Midnight Regulations, as they quickly became to be known, were duplicative of existing law, but also vague, confusing and much broader than existing law because they equated contraception with abortion, and among other things, also seemed to imply that providers could opt out of treating certain types of people, rather than performing certain types of procedures.

As of this writing, we are still studying the new ruling published today by the Department of Health and Human Services.  However, two things are clear.  One is that the administration in no uncertain terms clarifies that providers may not refuse to treat persons even if “lifestyle,” “sexual orientation,” or other considerations offend their consciences.

The second is that the administration makes explicit that contraception can not be equated with abortion and therefore providing contraception is not covered by conscience provisions.

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“The provision of contraceptive services has never been defined as abortion in federal statute,” says the ruling. “There is no indication that the federal health care provider conscience statutes intended that the term “abortion” included contraception.”

“The 2008 Final Rule did not provide that the term “abortion,” as contained in the federal health care provider conscience protection statutes, includes contraception,” said HHS.

However, the comments reflect that the 2008 Final Rule caused significant confusion as to whether abortion also includes contraception. The provision of contraceptive services has never been defined as abortion in federal statute. There is no indication that the federal health care provider conscience statutes intended that the term “abortion” included contraception.

Additionally, notes the HHS memo, “while there are no federal laws compelling hospitals to provide contraceptive services, the Medicaid Program does require that States provide contraceptive services to Medicaid beneficiaries. The Department is concerned that the breadth of the 2008 Final Rule may undermine the ability of patients to access these services, especially in areas where there are few health care providers for the patient to choose from. As we state above, entities must continue to comply with their Title X, Section 330, EMTALA, and Medicaid obligations, as well as the federal health care provider conscience protection statutes.”

[The] Department partially rescinds the 2008 Final Rule based on concerns expressed that it had the potential to negatively impact patient access to contraception and certain other medical services without a basis in federal conscience protection statute.

The Department is concerned that the breadth of the 2008 Final Rule may undermine the ability of patients to access these services, especially in areas where there are few health care providers for the patient to choose from. As we state above, entities must continue to comply with their Title X, Section 330, EMTALA, and Medicaid obligations, as well as the federal health care provider conscience protection statutes. 

At the same time, HHS stated:

The administration strongly supports provider conscience laws that protect and support the rights of health care providers, and also recognizes and supports the rights of patients. Strong conscience laws make it clear that health care providers cannot be compelled to perform or assist in an abortion.  Many of these strong conscience laws have been in existence for more than 30 years.  The rule being issued today builds on these laws by providing a clear enforcement process. 

The final conscience protection rule being issued today by HHS reaffirms the Department’s commitment to longstanding federal conscience statutes by maintaining and building upon provisions of the Bush administration rule that established an enforcement process for federal conscience laws, while rescinding the definitions and terms of the previous rule that caused confusion and could be taken as overly broad.

Nancy Keenan, president of NARAL Pro-Choice America, today hailed the administration for repealing the rule which, had it been finalized in its original form, would have allowed insurance companies to deny claims for birth-control pills, hospitals to refuse emergency contraception to rape survivors, and employees at HMOs to refuse their patients referrals for abortion care.

“The language published today reaffirms the principles of protecting the doctor-patient relationship by repealing the most onerous and intrusive parts of Bush’s last-minute refusal rule,” Keenan said.

“The Obama Administration was correct in rescinding the highly inaccurate and dangerous provisions in a regulation imposed by the Bush Administration in late 2008,” said National Women’s Law Center Co-President Marcia D. Greenberger.

It put the health and safety of American women at risk by expanding far beyond legal limits the ability of health care providers to refuse necessary treatment and information to patients—particularly when seeking reproductive health care, but going far beyond. The highly controversial regulation, which has been challenged in the courts, in effect encouraged providers to deny access not only to abortion services and information but also to contraception, treatment for infertility, depression, substance abuse, and HIV/AIDS in ways that the law does not allow. Indeed, virtually any medical service could have been swept within its expansive purview.

“Yet the danger to American women remains,” said Keenan. “At the very time that these harmful provisions have been rescinded, the majority in the House is pressing for legislation that would go even further in putting essential health care out of the reach of women and their families.”

The rule comes just as the House of Representatives passed the Pence amendment seeking to defund Planned Parenthood.

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