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HHS Has "Failed Entirely" With Conscience Proposal, Says Planned Parenthood and ACLU

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Originally posted on RH Reality Check - Information, commentary and community for reproductive health.

Planned Parenthood Federation of America with the ACLU and the Center for Reproductive Rights sent a letter today to the Office of Information and Regulatory Affairs criticizing them for failing "to explain how the Provider Conscience regulation meets the "extraordinary circumstances" standard laid out in the Bolton Memorandum."

As RH Reality Check has extensively reported on over the last several months, the Bush administration felt it necessary to quickly release proposed regulations, under the Department of Health and Human Services (HHS), that would have disastrous effects on health care consumers, in particular women seeking contraception, by elevating the opinions of health care providers above critical access to health care. These proposed regulations allow for health care providers and any staff members in federally funded health care facilities, to define contraception as abortion, and to refuse to provide women contraception - for any reason - if it conflicts with their personal belief system.

"It's unconscionable that the Bush administration, while promising a smooth transition, would take a final opportunity to politicize women's health," said PPFA President Cecile Richards. "People want government to find commonsense solutions to problems, not to create them by allowing health care providers to withhold critical information and services at a time when affordable health care is hard enough to come by."

Unfortunately for the Bush administration, though they thought these proposed regulations would quietly become embedded in HHS policy, health care advocates, health care providers, women's advocates, health care consumers and others took notice. In only a few weeks, more than 200,000 Americans registered their comments in the 30-day public commenting period - most of them vehemently opposed to such a regulation.

"Ultimately, low-income women, who already face tremendous obstacles getting health care and rely more on public programs, will be hit the hardest by this regulation," said Nancy Northup, president of the Center for Reproductive Rights. "This new rule violates a woman's rights and needs as a patient and, in the end, only erects new barriers to her access to reproductive health care."

It was not looking good for Bush's eleventh hour attempt to curtail women's access to reproductive health care in a final move. But there's more.

According to a directive from the White House itself (the Bolton memorandum), issued in May 2008, all proposed regulations were to be submitted by June 1, 2008 in order to be considered for passage, unless there were "extraordinary circumstances" at work. The HHS regulations were not submitted until August 2008, thus causing advocates and others to assume the only way they could be considered was for their content to address said "extraordinary circumstances."

Unfortunately, as of today, there have been no explanations to the American public as to why these proposed regulations, seeking to reprioritize provider opinions and belief systems as more important than patient care, address critical circumstances. In order to seek answers, Planned Parenthood, the ACLU and the Center for Reproductive Rights have sent a letter (below) to the Office of Information and Regulatory Affairs.

You can take action here.

November 17, 2008

Hon. Susan E. Dudley
Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
725 17th Street, NW
Washington, DC 20503
Fax: (202) 395-3047
Email: OIRA-submissions@omb.eop.gov

Dear Ms. Dudley:

The undersigned groups committed to women's health are writing to urge OIRA to take its responsibilities seriously with respect to the Department of Health and Human Services' (HHS) "Provider Conscience Regulation" (RIN 0991-AB48, 73 Fed. Reg. 50274 (Aug. 26, 2008) (to be codified at 45 C.F.R. pt. 88).

As you are well-aware, on May 9, 2008, White House Chief of Staff Joshua Bolten issued a directive for agencies to submit all proposed regulations they wish to finalize before the end of the Bush Administration by June 1, 2008, except in "extraordinary circumstances." Mr. Bolten's directive explicitly sought to "resist the historical tendency of administrations to increase regulatory activity in their final months." The purpose of the deadline was to ensure that agencies did not engage in ill-conceived rulemakings prior to a change of administration.

Yet this is exactly what HHS is doing with the Provider Conscience regulation. These regulations, which relate to statutes that have been on the books for years (in one case, since the 1970's) were not proposed until late August 2008. Moreover, HHS has put the rule on the fast track with a shortened 30-day public comment period and no public hearing.

This unjustified last minute regulatory rush, in clear contravention of the Bolten directive, was drawn to your attention by the Institute for Policy Integrity (IPI). In its letter dated September 5, 2008, IPI requested that you enforce Mr. Bolten's directive by either explaining the "extraordinary circumstances" that require the issuance the Provider Conscience regulation, or preventing the promulgation of this eleventh-hour regulation. Your response to that request, dated October 9, 2008, suggested that the Provider Conscience regulation is a "circumstance[] in which it would be appropriate for individual regulations to proceed without regard to deadlines if approved by OIRA, working closely with the heads of the President's policy councils."

You have failed entirely to explain how the Provider Conscience regulation meets the "extraordinary circumstances" standard laid out in the Bolton Memorandum. If OIRA believes that extraordinary circumstances exist for this proposed regulation and plans to allow HHS to proceed with finalizing these regulations before the end of the Administration, we believe that OIRA owes the American public a clear explanation of the extraordinary circumstances that justify allowing this to happen. We request that OIRA provide that explanation as soon as possible.

As demonstrated in the thousands of comments that HHS received in response to the proposed rule, this ill-conceived, last-minute regulation could have a dramatic negative effect on the delivery of basic healthcare to women. OIRA should take its responsibilities seriously and not allow HHS to engage in ill-conceived, last-minute rulemaking - under the endorsement of OIRA.

Furthermore, we request that OIRA and OMB require HHS to undertake a more formal accounting of the costs and benefits of the proposed Provider Conscience regulation. As IPI's September 5 letter explained, the analysis performed by HHS was cursory and wholly inadequate. That cost-benefit analysis does not even attempt to address the real cost of the regulation for women, especially low-income women, whose access to basic reproductive health services, including contraception, as well as information about those services, may be limited as a result of the regulation.

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