A potential new regulation from the Bush administration would greatly expand the scope of federal refusal rights for health care providers. The draft regulation, which was leaked to the media and advocacy groups on July 14, would allow health care personnel and institutions to refuse to provide or even tangentially assist in the provision of services that offend their religious beliefs or moral convictions.
Congress has enacted three such refusal clauses, starting with the Church amendment shortly after Roe v. Wade and most recently the Weldon amendment in 2004, which apply to some or all recipients of funding from the U.S. Department of Health and Human Services (DHHS). The Bush administration now asserts that the American public, including state policymakers and health care professionals, is uninformed of these laws and has displayed hostility toward the principle of religious tolerance that they purportedly embody.
As evidence, the draft cites state laws mandating insurance coverage of contraceptives, requiring sexual assault victims’ access to emergency contraception, guaranteeing access to contraceptives at pharmacies and allowing officials to intervene in hospital mergers to ensure communities’ continued access to services. The cases cited as problematic cover most of the major legislative victories by family planning and reproductive health advocates over the past decade.
As further evidence of the purported problem, the draft cites a finding from a 2007 article in the New England Journal of Medicine stating that 86% of physicians believe they are obligated to provide patients with information on all of their medical options, regardless of a physician’s personal objection. Presenting this fact as a “problem” implies that this belief held by the majority of doctors stems from their ignorance of the supposed legal right to refuse, rather than from a conviction that they are in fact obligated, both legally and under the standards of their profession, to provide all information necessary to obtain a patient’s informed consent.
The administration asserts that the regulation will raise awareness of current refusal laws and clarify their meaning, but in “clarifying” the laws, the administration is actually redefining and expanding their reach in several crucial ways:
- First, the regulation says that “abortion” (participation in which providers have long had an explicit right to refuse) could be defined—by any individual or institution—to effectively include all hormonal methods of birth control (because these methods may act post-fertilization, although this is not their primary mode of action). For years, leading antiabortion groups and conservative lawmakers have been asserting that commonly used methods of contraception are in fact “abortifacients.” Adopting this position would be a stark departure from precedent in federal rules and regulations and from the consensus of the medical community.
- Second, it defines other key terms so that laws originally designed to apply to health care professionals such as doctors and nurses, who are directly involved with a given procedure, would now apply to any member of a health care institution’s paid or volunteer workforce participating in “any activity with a logical connection” to such services. The new definition would encompass information, counseling, referral, clerical and janitorial work and a host of other activities.
- Third, it asserts that a provision enacted in 1974 as part of a law governing federally funded medical research applies to all DHHS-funded health research and service programs. This interpretation opens the door for individuals to object to being involved, even tangentially, in a range of health care activities beyond reproductive health or to serving specific types of patients, such as single women, gays and lesbians, or teenagers.
Among other consequences, the regulation, were it to be adopted, could have a serious impact on clients’ guarantee of access to a full range of services, information and referrals at clinics supported by the Title X national family planning program and on the ability of health care provider entities to employ staff members supportive of their institutional mission. Certification and enforcement mechanisms included in the regulation also appear problematic, potentially adding major bureaucratic hurdles for domestic and even international government and health care institutions and inviting harassment by private citizens and advocacy groups alleging “fraud” by providers against the government.
In the meantime, many reproductive health champions in Congress are calling on the administration to drop the idea of even proposing such regulations, including House Speaker Nancy Pelosi (CA), over 100 members of the House (both prochoice and antiabortion) and a group of 20 senators, including Majority Leader Harry Reid (NV) and Sen. Barack Obama (D-IL).
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