Bush Administration Scurries to Finalize Harmful Regulations

"Provider Conscience" Proposal Will Undermine Women's Access to Reproductive Health

November 24, 2008

Recent reports revealed that in its final days the Bush administration is planning to ram through at least 90 regulatory changes, many detrimental to public health and family needs. Among these harmful changes is the Department of Health and Human Services' (HHS) proposed "Provider Conscience" rule, which has the potential to severely restrict women's access to birth control and other reproductive health services.

Senators Hillary Clinton (D-N.Y.) and Patty Murray (D-Wash.), who have long been champions of women's access to reproductive health care, along with House Pro-Choice Caucus co-chairs Diana DeGette (D-Colo.) and Louise Slaughter (D-N.Y.), have made it clear that they will work to overturn this particular rule -- which Congress has the power to overturn -- but the 110th Congress is dealing with the economic crisis and related issues, and may have no time to stall or even address this and other harmful policy changes.

According to a statement from Clinton and Murray, the proposed HHS rule would require any health care entity that receives federal financing to certify in writing that none of its employees are required to assist in any way with medical services they find objectionable.

TAKE ACTION NOW

Please take a minute to contact your congressional representatives. If you have a pro-woman, pro-choice, pro-birth control member of Congress, contact them with the message at the bottom of this article.

The final regulation may be issued this week, and if it goes into effect, it could allow pharmacists to refuse to provide birth control to Medicaid recipients and literally undo state laws that require hospitals to dispense emergency contraception to rape survivors. Those hit hardest will be low-income women seeking reproductive health care. How predictably cruel in these tough economic times that George W. Bush would add this to his legacy.

The new Obama-Biden administration is aware of this last minute effort to push through regulations, and they have issued a list of over 200 regulatory and policy actions (including this provider conscience rule) that they want to overturn upon entering office on Jan. 20, but that process could take many months. Despite all of our calls, letters, submissions and comments to HHS, the enactment of this rule, even temporarily, will be a serious, albeit short-term, setback for girls and women.

The Provider Conscience rule is just one of many regulatory changes that will affect women, including one that will reduce the ability of employees to take leave under the Family and Medical Leave Act and another that will undercut outpatient Medicaid services. But the conscience rule is the most vicious, in that it would allow doctors, nurses and nearly anyone else employed in a health care setting to deny women access to birth control, based on the providers own personal belief that birth control is immoral or tantamount to abortion. It goes far beyond protecting the moral and religious beliefs of health care providers and is, in actuality, a manipulation of the pre-existing conscience clause to deny women critical care.

In addition, the rule allows health care providers who object to medical procedures (abortion, sterilization, contraception, etc.) to refuse to refer patients elsewhere for services. Overbroad and redundant language even could be interpreted to allow withholding of care from anyone - for example transgender people or HIV-positive patients.

In a September action alert, NOW asked the question, "Whose conscience is it anyway?" NOW activists joined more than 200,000 individuals, 150-plus members of Congress, and a coalition of state attorneys general and governors in lodging our opposition to this rule.

Rep. Henry Waxman (D-Calif.), Chairman of the House Committee on Oversight and Government Reform, wrote to HHS Secretary Michael Leavitt expressing concern that the rule was issued in violation of a requirement that agencies coordinate with one another in the development of regulations. HHS did not consult or even notify the Equal Employment Opportunity Commission (EEOC) about the proposed regulation, even though the EEOC is responsible for enforcing Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of religion. And three officials from the EEOC, including its legal counsel, whom President Bush appointed, said the proposal would overturn 40 years of civil rights law prohibiting job discrimination based on religion.

House Speaker Nancy Pelosi (D-Calif.) also has spoken out against several of these dangerous "midnight regulations" and the HHS refusal rule is included on her list.

Obviously, it is not the patient's conscience that is being considered. The HHS "provider conscience" rule is in fact an infringement on the conscience of the patient by denying her the means to obtain appropriate health care in a safe, convenient and timely manner. Currently, there are three so-called conscience clauses in federal law that allow medical personnel to excuse themselves from certain procedures, but the expansion of the conscience clause in this rule change means that patients can be denied treatments and medications because a nurse, doctor or pharmacist refuses to treat her and refuses to refer her to other providers who will help her. Certainly, this is a perversion of the Hippocratic oath, "First, do no harm."

At a time when 17 million women are in need of publicly-supported reproductive health care services, this regulation disparately impacts the low-income, uninsured and under-insured women who rely on these programs for their health information and services. If the HHS Provider Conscience rule is adopted, many of those women will be denied care and so will women who receive health care under any other public or private health care plan.

TAKE ACTION NOW

Because time is of the essence, we need to contact our congressional representatives directly in the next few hours or days. If you have a pro-woman, pro-choice, pro-birth control member of Congress, contact them and copy some version of the message below or the information above onto their web form for comments.

Add your own thoughts and remember, you can always call their local or D.C. office and ask to speak with the staff person who handles women's issues or health issues. Even if we are unable to stop this regulation now, we will need our Congress members to be aware of this in order to overturn it next year, so please bring this up when you see or meet with your new senator or representative, especially if they campaigned and won on a pro-choice platform.

 

Dear Representative/Senator:

Please contact HHS Secretary Leavitt and ask him to withdraw the "Provider Conscience" rule. The proposed regulation goes beyond his stated intent and threatens women's access to birth control and reproductive health care. The proposed rule has no regard for women's autonomous ability to make fundamental decisions about their healthcare and family formation and allows the views of health care providers to trump the religious, moral and ethical decisions of their female clients and patients.

The proposed regulation is chilling and downright harmful and undermines health care workers' ability to offer the very services for which they are funded by our government. It will discourage doctors and health clinics from providing the full range of legal, medically-necessary reproductive health services for fear of losing federal funds and will overturn many state laws that require expanded health care services.

I urge you to take action to delay or prevent implementation of the "Provider Conscience" regulation. Please do this to ensure a standard of care that gives patients, without exception, access to the full range of medical services and information they require or request. I will be looking for your support on this issue of importance to millions of women.

Resources:

Midnight at the White House: Bush Using Rules to Cement Legacy

Protests Over a Rule. . .

Bush's Attack on Women's Health Is Bad Medicine

Senators Clinton and Murray Introduce Legislation to Stop New HHS Rule that Would Undermine Women's Health Care