THE BLOG
01/19/2009 05:12 am ET | Updated Nov 17, 2011

HHS Publishes Provider Conscience Expansion Rule

The Department of Health and Human Services today published a new regulation broadening protections for health care providers who refuse to provide health care services based on religious or moral grounds. The new regulations, which have been widely denounced by women's health groups, physicians' groups, members of Congress, President-Elect Obama, the Equal Employment Opportunity Commission, and by over 200,000 individual commenters filing opposition to the regulations, expand the definition of health care providers protected by provider conscience regulation and allow dissenting providers to refuse to refer patients for treatment in addition to refusing treatment itself.

The administration made almost no substantive changes to the regulation following the period of public comment, says Adam Sonfield, senior public policy associate at the Guttmacher Institute. "The 200,000 comments in opposition to the rule they dismiss," says Sonfield. "They pretend to respond directly to them, but they actually don't." The only major substantive change the administration made to the rule is to expand the definition of the workforce the rule applies to -- for instance, it now includes contractors.

An early, leaked draft version of the regulation specifically suggested that providers who consider hormonal birth control to be an abortifacient should not have to prescribe it or refer patients for its prescription. The regulation relied on arcane, non-medical definitions of pregnancy to suggest that the belief that pregnancy begins at fertilization is a valid and that, a hormonal contraceptive, which anti-choicers claims block implantation of a fertilized egg, is tantamount to abortion. The second, released draft, now published, does not conflate contraception with abortion, but in its broad scope nonetheless provides protections for providers who would like to do just that. "The regulation confirms what we feared," says Marilyn Keefe of the National Partnership for Women & Families. "HHS refused to allay any of the concerns raised in earlier iterations. Contraception clearly remains a target."

One of the rule's more disturbing provisions is the announcement that Title X family planning funding will now be open to grantees who refuse to counsel women on the availability of abortion. Title X has always required that when a woman tests positive for pregnancy, she must be counseled on all of her options, including abortion, and given referrals based on what her expressed interest. The regulations state that Title X funding will be granted "non-discriminatorily" to applicants, including those who refuse to provide counseling and referral for abortion.

Additionally, the rule fails to make clear whether health care centers who do intend to provide unbiased options counseling can even ask potential employees whether they are comfortable participating in an abortion procedure or counseling a woman about her options, Roger Evans, director of litigation at Planned Parenthood, acknowledged today.

Moral objection, meanwhile, is not strictly limited to religious belief -- it can mean any personal moral commitment, which is a much broader protection than "traditional conscience clauses," says Jessica Arons, of the Center for American Progress.

The rule must now be submitted to both the Government Accountability Office and both houses of Congress. Congress has a period of time to review the rule (and because of the timing of the rule's publication, this period will stretch into the 111th Congress), during which time a motion to disprove can be introduced. If the motion to disprove is passed by both houses of Congress and signed by the President, the rule cannot be enforced or defended in court. Using the Congressional Review Act in this way to invalidate the regulation, however, would be "controversial," says Matt Madia, of OMB Watch. A motion to disprove has to see an up-or-down vote; it can't be attached to appropriations bills or other must-pass legislation. "Everyone has to go on record on the issue, and there's no way to fudge it," says Madia.

If this avenue fails, Congress could refuse to appropriate funds for implementation of the rule, or Congress could pass the legislation introduced by Sens. Hillary Clinton and Patty Murray that would prohibit HHS from implementing the regulation. Finally, the new administration could begin a new round of rule-making, perhaps the most time-consuming option.

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