The Department of Health and Human Services today formally released proposed regulations that Secretary Michael Leavitt claims are necessary to protect health care providers and institutions who decline to provide certain medical services because those services offend their "consciences."
After intense criticism in
the mainstream media and from millions of Americans, HHS has removed
an explicit redefinition of contraception as abortion from the regulation.
In so doing, the agency may have created a much larger problem.
Unlike the draft version leaked over a month ago, this version of the proposed rule does not invite providers to decide for themselves when pregnancy begins, what an abortion is, what contraception does and give that provider's beliefs legal cover. But despite Secretary Leavitt's insistence that "This regulation is not about contraception. It's about abortion and conscience," providers may need no specific invitation.
The regulations now read, "This lack of knowledge [of provider conscience law] within the health professions can be detrimental to conscience and other rights, particularly for individuals and entities with moral objections to abortion and other medical procedures." "Contraception" falls nicely into the category of "other medical procedures." Says the National Family Planning and Reproductive Health Association's Mary Jane Gallagher, "The proposed regulations, and Secretary Leavitt's public comments about them, leave the door open as to whether institutions and individuals can deny access to contraception."
The proposed regulations may no longer imply that state laws in California, Massachusetts, Illinois and elsewhere that require hospitals or pharmacies to dispense contraception and emergency contraception are the very problem they're seeking to address - as the leaked version of the regulations did. But that doesn't mean the regulations as written wouldn't undermine those laws anyway. Targeting "provider conscience" can be a shell game for attacking access to contraception and abortion if contraception and abortion are what providers' consciences are telling them not to provide. "While the rules are not identical to the draft proposal being circulated by HHS last month, the agency...interprets existing conscientious objection laws so broadly that it could result in women not receiving information they need to make informed healthcare decisions," notes the Center for Reproductive Rights.
At first blush, the new regulation may appear simply to create a certification process -- at a taxpayer cost of $44 million -- that requires providers to sign their compliance with existing provider conscience law, but it may in fact extend the reach of current law. Worrisome provisions proliferate in the new regulations - for instance, that referral for services, or indeed any information about the services being denied - is not required of those conscience-bound providers.
The regulations also seem to expand the definition of just who provides health care services. The Department claims that it wants to define this "broadly," and will include those who do not provide but would assist in the provision of services, including nurses but also those who, for example, "clean the instruments" used for a procedure. What's next, those who stock the antiseptic ointment? Receptionists who make the appointments?
Perhaps most troublingly, the "other medical procedures" cited in the regs could, of course, extend far beyond abortion, contraception, or anything having to do with women and reproduction. Could physicians morally object to providing services to lesbians seeking infertility treatment (as the California Supreme Court ruling recently declared they couldn't)? Could they object to serving IV drug users seeking HIV testing? What about a Scientologist pharmacist asked to fill a prescription for Zoloft? While the proposed regulation takes into careful account provider conscience, no provision is made for protecting patients' care.
In fact, one has to ask where in these regulations a patient's conscience is ever considered. The proposed regulations suggest that health care providers or "entities" (inclusive of individuals, institutions, organizations) won't even be required to refer a patient to another provider who would provide care. How will patients be able to trust that they are getting accurate medical information? By not requiring referral, the proposed regulations could mean that a rape survivor in search of emergency contraception could not only be denied service, but does not have any right to be told where she might be able to obtain this legal service."This draconian regulation means that women can be refused care and information by the very people they trust to provide it," says President of the National Partnership for Women and Families Debra Ness. "It undermines the doctor-patient relationship because women will now have to question whether their health care providers are giving them complete and unbiased information, and the best care possible."
In the month since the draft regulations were leaked, Secretary Leavitt has suggested repeatedly that the intention of the regulations was not to define abortion or contraception, but to narrowly address provider conscience. "[T]he issue I asked to be addressed in this regulation is not abortion or contraceptives, but the legal right medical practitioners have to practice according to their conscience and patients should be able to choose a doctor who has beliefs like his or hers. The Department is still contemplating if it will issue a regulation or not. If it does, it will be directly focused on the protection of practitioner conscience," he wrote on his personal blog on August 11. But anyone concerned about whether, in a world of expanded protection for practitioner conscience, patients seeking care in accordance with their own consciences might be unable to access services, was left cold by the thought experiment that followed. Secretary Leavitt mused: "Is the fear here that so many doctors will refuse that it will somehow make it difficult for a woman to get an abortion? That hasn't happened, but what if it did? Wouldn't that be an important and legitimate social statement?"
The regulations are now open for 30 days of public comment, and must be finalized before becoming law.
As we've done for the past five weeks, RH Reality Check will continue to bring you the latest news and analysis of the impact of the proposed HHS regulations. Experts in the field are looking over the proposed regulations now, so stay tuned for more detailed analysis.
