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Taking Bush's Midnight HHS Regulation to Court

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Originally written for - Information, commentary and community for Reproductive Health and Justice.

The National Family Planning and Reproductive Health Association (NFPRHA) in conjunction with the American Civil Liberties Union today joined Connecticut Attorney General Richard Blumenthal and the Planned Parenthood Federation of America (PPFA) in filing separate but parallel federal court lawsuits seeking to invalidate the "provider conscience rule" published by the Department of Health and Human Services (HHS) in December.

The HHS rule, one among a set of "midnight regulations" put forth in the waning days of the Bush Administration, was first released in draft form last summer, formally published in the federal register on December 19th, and will go into effect on January 19th, the eve of Inauguration Day. The rule, extensively covered on RH Reality Check, seriously jeopardizes patients' access to health care information and services by allowing employees, and even volunteers, of clinics and hospitals receiving government funding to deny access to a wide variety of medical services. As Jessica Arons of the Center for American Progress noted, the rule ostensibly protects only employees who object to abortion and sterilization, but "is written so vaguely that it could also apply to contraception, fertility treatments, HIV/AIDS services, gender reassignment, end-of-life care, or any other medical practice to which someone might have a personal moral (not even religious) objection."

The groups are seeking an injunction against enforcement of the rule, calling it, in Attorney General Blumenthal's words, "an unconscionable and unconstitutional midnight regulation and a ticking legal time bomb that threatens to blow apart vital women's rights on inauguration day."

An injunction will prevent the rules from going into effect, and the groups also seek a declaratory judgment that would find the rules unconstitutional. They are also anticipating that the Obama administration will undertake a process aimed at reversing the rules after inauguration day.

The lawsuits are based on several claims, including that the process of developing, vetting and publishing the rule was flawed, and that the published rule exceeds the authority of the Administration because it is in conflict with existing laws, such as the Weldon and Church Amendments and Title X. In addition, the lack of definition of "abortion" in the rule allows individuals to interpret abortion to include any form of contraception, going far beyond the legal and medical definitions of the term. Given the vagueness of the statute, noted Cecile Richards, President and CEO of Planned Parenthood Federation of America, "providers who do not believe in pre-marital sex could deny testing and treatment of sexually transmitted infections to unmarried couples seeking assistance; people who equate emergency contraception with abortion could deny rape victims access to this method and to the means of avoiding an unintended pregnancy."

Blumenthal further stated that the rule "interferes with states' rights because it can not be implemented without riding roughshod over existing state regulations and without causing states to lose billions of dollars in federal aid to deliver health care." This rule, stated Blumenthal, "would supercede carefully crafted Connecticut statutes arrived at through a painstaking and controversial process that ultimately balances the rights of women to health care and contraception with the rights of providers to follow individual moral and religious beliefs."

Connecticut is one among 27 states with laws requiring health insurance plans that cover prescription drugs to provide equitable coverage for contraception. Such state laws facilitating contraceptive access are at risk under this regulation, which extends sweeping protections to health care entities who seek to restrict coverage for reproductive health care. Last September, Blumenthal led a 13-state coalition (including Arizona, Illinois, Iowa, Maine, Maryland, Massachusetts, Montana, New Jersey, Oregon, Rhode Island, Utah and Vermont) calling on HHS to abandon the draft rule entirely, stating that the rule "puts personal agendas before patient care -- protecting doctor objections, but entirely ignoring the rights of rape victims and others to access birth control and other vital services [and] upsets the careful balance between physician beliefs and a patient's right to affordable, accessible health care." Connecticut was joined today in the suit by six other states, including California, Illinois, Massachusetts, New Jersey, Oregon and Rhode Island.

Both Richards and Mary Jane Gallagher, President of NFPRHA, cited the potential economic and health costs of the rule to individuals, clinics, and states.

"Millions of men and women seek health care from Title X and other federally funded clinics every day," stated Gallagher. These services run the gamut from counseling and contraception to breast and cervical cancer screening, prevention of sexually transmitted diseases, safe pregnancy services and other critical interventions that are "increasingly urgent in this economy as millions of people have lost their jobs and their health care insurance."

If these regulations go into effect, Gallagher added, "We will have total chaos in an already stressed health care system particularly among low income populations in greatest need. Many of our members serve low-income populations who do not have the luxury of shopping around to pick and choose which providers will provide them with the most basic health care options."

The groups expect the Obama Administration to support the suit. To get rid of the regulations through the formal process, however, President Obama would have to initiate another review and public comment period that would take anywhere from 3 to 6 months, leaving untold numbers of women and men at the whim of providers who do not wish to offer essential services. The injunction is therefore critical to ensure continuing coverage of basic services, the groups said.

Organizations also are looking to Congress for concurrent action. Under discussion are several options, including passage of a resolution of disapproval of the HHS rule under the Congressional Review Act (CRA) that would repeal the rule outright. Congress also could attach a rider to an appropriations bill that would block funds for enforcement of the rule. Finally, some members of Congress are considering taking action against the broader scope of midnight regulations--on environment and health care among other such rules--suspending the effective dates of all rules for some period of time or to put in place an expedited review process.

But, noted Blumenthal, "the preliminary injunction is the ball game here."

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