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Federal Rule on Right to Refuse Threatens Patients’ Access to Information and Care

August 22, 2008

The Bush administration on August 21 announced that it will formally propose a new federal regulation expanding the refusal rights of individuals and institutions in the health care field that object to providing or assisting in the provision of services that offend their religious beliefs or moral convictions. Ending more than a month of speculation, the formal proposal modifies—and rhetorically scales back—a draft leaked in mid-July, but it retains the draft’s most serious flaws.

Three federal refusal laws, one of which dates to the early 1970s, specifically address abortion and, in some cases, sterilization, and initial public criticism of the leaked draft focused largely on its definition of that first term. By explicitly including any action blocking the implantation of a fertilized egg, the draft in effect redefined the birth control pill and other major forms of modern contraception as abortion, because they may sometimes (although not primarily) act post-fertilization. In his official blog on August 7, Health and Human Services Secretary Michael Leavitt asserted that it was never his intention to “deal with the subject of contraceptives,” but the regulation as formally proposed only further muddies the waters. Instead of clarifying the definition of abortion, in line with the consensus of the medical community and a long list of existing federal rules and regulations (including those issued by the Bush administration) that pregnancy begins after the implantation of a fertilized egg, it merely drops the definition entirely.

The new version also leaves out what had been an extensive discussion—as part of the “problem” to be solved—of state laws promoting access to contraception. Meanwhile, of course, numerous antiabortion activists and policymakers insist that most common forms of modern contraception are, in fact, abortion—and Leavitt himself has acknowledged that efforts to conflate the two will continue.

Another key problem is that like the draft, the formal proposal would for the first time expand health care providers’ refusal rights to include the provision of information on topics and treatments that they find objectionable. This seriously undermines the traditional ethical and legal obligation to give patients complete information on their medical options, so as to enable them to provide informed consent.

In addition, the proposed regulation retains definitions of other key terms affecting which health care workers are covered by the new rule. Laws originally designed to apply to health care professionals such as doctors and nurses directly involved with an abortion or other procedure would now apply to any member of a health care institution’s paid or volunteer workforce participating in “any activity with a reasonable connection” to the service. Notably, that would allow refusals related to clerical and janitorial work and a host of other activities, without any stated exceptions or restrictions. (Currently, claims of religious discrimination in the workplace—health care or otherwise—are governed by an extensive body of laws, regulations and court precedent that balance the religious rights of workers with the practical needs of employers, including their ability to provide needed care to their clients.)

Comments on the regulation will be accepted for 30 days after it is formally proposed, after which the regulation may be further modified and formally promulgated at any time.

Click here for more information on:

The Implications of Defining When a Woman Is Pregnant

The Current State of the Debate Over Refusal to Provide Services

State Policies on Insurance Coverage for Contraceptives

State Policies on Access to Contraceptives at Pharmacies

State Policies on Emergency Contraception