Letters opposing the proposal by the Bush Administration and HHS to elevate physician conscience above patient conscience, threatening access to contraception and a range of other medical procedures, are gathering signatures from Members of Congress prior to the public commenting deadline.

The letter currently ciriculating in the House says:

While HHS states that the intent of the regulation is to clarify existing law, its expansive language and ambiguity will likely have the opposite effect.  Rather than clarify the law, the proposed rule will lead to confusion for health care providers, state and local governments, and research institutions—which will undoubtedly struggle with the uncertain interaction between this proposed regulation and existing state and federal laws that address these issues.

This proposed rule is a solution in search of a problem.  The American Board of Obstetrics and Gynecology (ABOG) recently issued a public statement vehemently denying charges by HHS that ABOG has required physicians to violate their conscience rights by providing or referring patients for abortion—erroneous charges that HHS used as a basis for issuing this unnecessary rule.  ABOG has also called on HHS to hold a hearing to reveal, among other things, actual cases of misconduct that the rule is intended to address which, to date, HHS has failed to provide to the public. 

On the threat to contraception access the letter states:

The potential implications of this ambiguity are far-reaching.  Like the leaked draft, the proposed rule leaves the door open for insurance plans, hospitals, and other entities to define abortion in any way they choose—including in ways that would include common forms of birth control.  As a result, women could be denied access to birth control services, including counseling and information, even if state laws protect that access. 

The fact that HHS completely ignores that patients have conscience rights, which traditionally have been viewed as important for people who go into the healing professions, is also a problem:

This proposed rule allows any employee of a health care provider to refuse to treat any individual if doing so would violate his or her religious beliefs or moral convictions—without any mention of the needs of the patient.  In doing so, the proposed rule fails to address serious questions as to whether its purpose is to upset the careful balance between respecting employees’ religious beliefs and employers’ ability to provide their patients with access to health care currently maintained in federal law under Title VII of the Civil Rights Act of 1964.

Concerns are also raised that the HHS proposal undermines access to medically reliable information by exempting professionals from having to refer patients to colleagues who got into medicine to treat patients, not become obstacles to patients seeking care:

The rule allows a broad range of health care providers and entities to refuse even to counsel patients about options—thus denying information critical to informed consent and referrals to any other source of information or services.

For some entities, the refusal to counsel patients for services or provide medical information and options could extend to any medical treatment, beyond reproductive health care.  For example, an oncologist working in a federally funded prostate cancer treatment program could withhold information from a patient about the option of extracting and freezing sperm before cancer treatment, if the oncologist personally objects to assisted reproduction.  Indeed, health care professionals might rely on this rule to justify their refusal to provide information or counseling on services from vaccination to blood transfusion to end-of-life pain management.

The failure of HHS to recognize emergency care situations is alarming:

The rule fails to address the obligations of individuals and entities in the case of medical emergencies.  For example, the federal Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals to at least stabilize patients who come to the ER in medical emergencies.  The proposed rule offers no answers as to whether avoiding “discrimination” against a health care provider should be allowed to trump the need to treat a patient in a medical emergency.  At best, this failure will cause confusion among employers.  At worst, it could place patients in need of emergency medical care in grave harm.  

The letter suggests that HHS is creating confusion and layers of government that will impede not only our already burdened domestic health care situation, but also our ability to provide help to others around the world because of its overly broad definitions:

Further, the definition of “workforce” extends the right to refuse not only to an entity’s employees but also to volunteers and trainees.

Further, the regulation’s definitions of “recipient” and “sub-recipient” would extend the laws’ applicability even to “foreign or international organizations (such as agencies of the United Nations)” without any reference or deference to existing federal law governing U.S. foreign policy. This could create confusion among federal agencies about which laws to follow and could lead to unforeseen foreign policy complications.

Lastly, in an era of unprecedented scientific advance and promising research, the letter points out the the proposed HHS rules will be confusing to a range of resarch institutions Americans rely on for new treatments and cures. This risks sending our best and brightest researhers abroad where these purely ideological obstacles are not imposed by government and research into cutting edge medical advances is seen not only as morally important, but economically advantageous:

Finally, the proposed rule could have a substantial impact on research activities at federally-funded hospitals and academic, nonprofit and corporate research institutions.  In the proposed rule, a broad array of HHS-funded entities, including post-graduate physician training programs, hospitals, laboratories, universities and think tanks, are prohibited from discriminating against any personnel who refuse to perform, or assist in, any research activity or service.

The public commenting period ends September 25 and then HHS is required by law to respond to all the public comments in substantive ways, address those concerns, if possible, prior to determining whether or not the rule can be published.  There are far more concerns that have already been raised than HHS has time to address substantively, but something tells me the far-right ideologues currently at HHS aren't really worried about the substance here, just making sure they get this done before the election.  

Depending upon who wins the presidential and congressional elections, a variety of options exists challenge these rules and protect patients from this irresponsible, ideological, lame duck regulatory scheme by HHS.

Anyone wishing to make a public comment to HHS may do so here before September 25.