On August 21, 2008 the U.S. Department of Health and Human Services (HHS) proposed new regulations that it said would “increase awareness of, and compliance with,…laws protecting federally funded health care providers’ right of conscience [with regards to providing or performing certain medical services.]” [i] The new regulations extend non-discrimination protections to not only healthcare providers but all employees (including volunteers) of institutions and entities receiving HHS funding. Under the proposed policy, funding recipients must certify their compliance with provider conscience rights. The regulations also institute policies regarding discrimination complaints under which recipients could see their funding terminated or be asked to return funding if they are found to be out of compliance.
HHS states that the intended objective of the new regulations is to reinforce “provider conscience rights” protected under three federal statutes—the Church Amendments (42 USC 300a-7), the Coats Amendment (42 USC 238n), and the Weldon Amendment (Consolidated Appropriations Act 2008, PL 110-161, Div. G 508d). These laws allow certain healthcare providers and medical entities to refuse to provide abortion and sterilization services. [ii]
HHS officials also assert that the proposed regulations are intended to safeguard individuals and entities against discriminatory practices that force them to compromise their moral beliefs. In a press release issued by HHS, Secretary Michael Leavitt states, “Doctors and other healthcare providers should not be forced to choose between good professional standing and violating their conscience. Freedom of expression and action should not be surrendered upon the issuance of a health care degree.” The Assistant Secretary of Health, Admiral Joxel Garcia, M.D., similarly stated, “Many healthcare providers routinely face pressure to change their medical practice—often in direct opposition to their personal convictions…But [they] shouldn’t have to check their conscience at the hospital door.” [iii]
Members of the reproductive health community, however, question the genuineness of the HHS proposal and its explanation. They have voiced concerns that the new regulations are actually an attempt to undermine patients’ access to reproductive healthcare and family planning services. Advocates point to a draft of the proposal which was leaked to the public on August 28th as proof of the government’s true intentions. The leaked draft provided a definition of abortion that allows for pregnancy to be interpreted as beginning at conception (fertilization of the egg by the sperm)—a definition that does not match the one accepted by the American Medical Association (AMA). The definition for pregnancy held by the AMA says that pregnancy begins once the embryo implants in the lining of the uterus. The expanded definition proposed in the draft regulations would classify common forms of contraception, such as the birth control pill, as abortion. Applying conscience clause language to the dispensing of birth control could severely threaten women’s rights to access reproductive health services. In some cases women might have to travel to other cities or to another state to access birth control.
Unlike the leaked draft, the official proposal does not include a definition of abortion. However, reproductive health advocates fear that the lack of a definition could have similar consequences—allowing healthcare providers and employees of entities receiving HHS funding to apply their own definition of abortion to certain medical procedures. For example, a healthcare provider could refuse to implant an intrauterine device (IUD) under his or her own definition of abortion.
Advocates also point out that the regulations put the rights of employees over the rights both patients and employers. Under the Title VII Civil Rights Law, employers must accommodate an employee’s religious beliefs unless doing so would impose an “undue hardship” on the business. The new regulations, however, threaten to cut the federal funding of businesses and entities who do not comply with the religious rights of employees—even if it means denying certain services to patients.
The regulations may also trump current state laws that were designed to ensure access to reproductive health services. For example, a hospital receiving federal funds could potentially choose not to abide by state law that requires hospitals to offer emergency contraception to sexual assault survivors. In another scenario, an insurance company receiving federal funding could choose not to comply with state laws that require insurance providers covering most prescription drugs to provide coverage for contraceptive drugs and devices. Currently, 27 states have laws or policies to enforce insurance coverage for contraceptives.[iv] In short, the proposal has the potential to throw into conflict established protocols that effectively balance the rights of patients and providers.
The official comment period for the proposal closed September 25th. During that time numerous organizations concerned with reproductive health encouraged individuals to submit comments opposing the proposed regulation. HHS is required to review all comments before releasing the finalized regulation.
[i] “Regulation Proposed to Help Protect Health Care Providers from Discrimination,” U.S. Department of Health and Human Services, accessed 14 September 2008, <http://www.hhs.gov/news/press/2008pres/08/200821a.html>.
[ii] Coalition letter to Health Secretary Michael Leavitt regarding new HHS regulations. Issued by the Planned Parenthood Federation of America, accessed 12 September 2008.
[iii] “Regulation Proposed to Help Protect Health Care Providers from Discrimination,” U.S. Department of Health and Human Services.
[iv] “Proposed Rule Will Undermine Women’s Access to Health Care Information and Services,” Press Released published by Planned Parenthood Federation of America, 2 September 2008.