September 25, 2008
Department of Health and Human Services
Office of Public Health and Science
Attn: Brenda Destro
Hubert Humphrey Building
200 Independence Avenue SW
Room 728E
Washington, DC 20201
Re: RIN 0991-AB48
Dear Ms. Destro:
The National Partnership for Women & Families (National Partnership) submits these comments in
strong opposition to the proposed rule published on August 26, 2008 by the Department of Health and
Human Services (hereinafter referenced as proposed rule or proposal). 1 We believe the proposed rule is
an ill-conceived, unnecessary, and counter-productive attempt to expand the reach of specific refusal
statutes that permit institutions or individuals to deny health services for religious or moral reasons. The
impact of this proposed rule would be devastating. It would make it easier to refuse patients vital health
services, and harder for patients to learn more about their health status and health options – precisely the
wrong outcomes needed in our health care system. Moreover, the proposal would create confusion in
crucial situations where the health and well-being of patients should be the top priority. We strongly
believe this proposed rule should be rejected and we urge you to halt all efforts to move it forward.
Our Perspective and the Context
The National Partnership is a nonprofit, nonpartisan organization that uses public education and advocacy
to promote fairness in the workplace, quality health care, and policies that help women and men meet the
dual demands of work and family. We have a longstanding commitment to protecting and improving
women’s health and women’s employment opportunities, recognizing the central and interconnected role
both issues play in the lives of women. Our health care work cuts across the many dimensions of the
health care system to focus on the key factors – quality, delivery, access, affordability, and availability –
that determine whether patients get the level and quality of health care services they need and deserve.
These dimensions have enormous impact on health care for women, particularly the provision of
comprehensive, high quality, and affordable reproductive health care services. Thus, we have worked for
years to preserve and uphold constitutional and legal protections that help ensure women can obtain the
reproductive health care services they need when they need them, and the information necessary to make
sound reproductive health decisions. The National Partnership also devotes significant resources to
1
73 Fed. Reg. 50274.
1875 connecticut avenue, nw ~ suite 650 ~ washington, dc 20009 ~ phone: 202.986.2600 ~ fax: 202.986.2539
email: [email protected] ~ web: www.nationalpartnership.org
2
combating sex, race, and other forms of invidious workplace discrimination to ensure equal employment
opportunities for women and people of color. We care deeply about eliminating discriminatory
workplace practices, especially gender-based practices that limit job opportunities for women. We have
worked extensively on enforcement of employment discrimination laws and on developing strategies to
achieve workplaces free of discrimination that fairly balance the interests of employees and employers.
These two policy perspectives give us a unique lens through which to view the proposed rule and its
implications for women.
The proposed rule purports to interpret three statutory provisions – often referred to as the Church
Amendments (42 USC §300a-7), the Coats Amendment (42 USC §238n), and the Weldon Amendment
(Consolidated Appropriations Act 2008, PL 110-161, Div. G, §508d). These laws permit, in specific
circumstances, certain refusals to provide abortion care or sterilization services if that type of care or
service conflicts with an individual’s or institution’s religious beliefs or moral convictions.
The Department asserts the proposed rule was issued to clarify the law, but the recent history preceding
the proposal suggests otherwise. Shortly before the proposed rule was issued, a draft was leaked to the
public and provoked a public outcry, in part because it included a broad definition of abortion that
encompassed different methods of contraception. Such a proposal could have been misused to deny
women access to or information about various forms of contraception, going well beyond recognized
definitions of abortion used by the medical community or in current federal law. While the inflammatory
provision was omitted from the proposal ultimately published, the lingering perception remains that the
proposed rule is primarily a calculated, political maneuver to influence the availability of reproductive
health care services.
Overview of National Partnership Comments
Underlying the National Partnership’s analysis of the proposed rule are three threshold principles: the
proposal must address real problems, not political objectives; the proposal must ensure that individuals
can obtain necessary, quality health care services – including reproductive health care services – while
respecting individual and institutional religious or moral beliefs; and the proposal must not damage other
important rights and protections without efforts to minimize harm or reconcile differences. We believe
the proposed rule fails on each of these measures. Specifically:
o
o
o
o
o
o
The proposal puts forward no concrete evidence demonstrating the need for the proposed rule, but
relies only on anecdotes and assertions, suggesting political or ideological motives.
The proposal includes no language to limit the term “abortion” to a definition that is medically
recognized or in current federal law and, thus, does nothing to alleviate concerns that the proposal
could be used to jeopardize access to contraception.
The proposal includes an overly broad definition of who is covered by the three refusal laws,
enabling more individuals and institutions to interfere with health care services.
The proposal expands what falls within the scope of a permissible refusal, to allow denials of
even information and counseling about health care services or options, and thus putting patients’
health at risk.
The proposal advances language that undermines longstanding employment discrimination
protections without explanation or clarification.
The proposal creates likely conflicts with state laws across the country, but makes no mention of
the potential problems or potential clarifying language.
For these reasons, as explained below, we strongly oppose the proposed rule.
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National Partnership Comments on Proposed Rule
A. The Proposed Rule Provides No Compelling Justification For Regulatory Action
The proposed rule provides no concrete evidence demonstrating a specific problem in need of regulatory
action. The background section of the proposal vaguely refers to “an attitude” that forces health care
professionals and institutions to violate their religious or moral beliefs, or risk discrimination.2 It also
asserts certain health professional organizations have “define[d] the exercise of conscience to be
unprofessional.”3 But, the section offers no specific cases, no specific allegations, no specific examples –
nothing to justify the need for the pending proposal.
A close examination of an early draft of the proposal, however, leaked to the public in July 2008, offers
greater insight into the possible motives behind the proposed rule. The background section of this early
draft complains about several state laws, for example, requiring hospitals to distribute emergency
contraception, and employers who provide prescription drug benefits to cover contraception.4 It also
points to an article about a survey of doctors suggesting many felt obligated to present patients with
health options they found objectionable for religious or moral reasons, and a series of letters to the editor
in response to the article.5 While none of these references are included in the final proposed rule, this
early draft suggests these anecdotes and ideological or policy differences motivated the proposed rule,
rather than evidence of a particular problem or some other compelling need. Tellingly, the American
Board of Obstetrics and Gynecology (ABOG) issued a statement not long after the publication of the
proposed rule vigorously denying the implied accusation that ABOG requires doctors to violate their
religious or moral beliefs.6 The statement also called for hearings that would require the Department to
identify specific cases or other evidence in support of the allegations, if any.
The lack of concrete evidence to justify the proposed rule raises serious doubts about the merit of moving
any proposal forward. We believe regulation-by-anecdote is counter-productive and arbitrary, and often
results in bad policy. There is nothing in the pending proposal that makes clear the substantive problems
that require regulatory action and, in the absence of such evidence, we believe the proposal should be
abandoned.
B. The Proposed Rule Does Nothing to Ensure That Methods of Contraception Are Not Targeted
We also oppose the proposed rule because of its failure to make clear it is not intended to limit access to
or the availability of contraception. Questions about the intent of the proposed rule have persisted
because a prior version of the proposal defined abortion broadly to encompass methods of contraception.
The inclusion of such a broad definition is out of step with definitions commonly used in the medical
community or in current federal law and, thus, it raised additional concerns about the political motives
fueling the proposed rule. Although the definition is no longer included, the proposed rule is glaringly
silent on the potentially expansive interpretations of abortion that could be used by individuals or
institutions to limit access to contraception. Indeed, rather than make clear the proposal does not apply to
2
73 Fed. Reg. at 50276.
Id.
4
See Department of Health and Human Services, Draft Proposed Rule 7-10 (2008) (at
http://www.rhrealitycheck.org/emailphotos/pdf/HHS-45 -CFR.pdf).
5
Id.
6
Letter from Norman Gant, M.D., Executive Director, ABOG, to Michael Leavitt, Secretary, Department of Health
and Human Services (August 22, 2008) (at http://www.abog.org/publications/leavitt.Response.2008.pdf).
3
4
birth control, HHS Secretary Michael Leavitt stated: “This regulation does not seek to resolve any
ambiguity in that area,” when asked whether the regulation could deny access to contraception.7 The
proposed rule effectively leaves the door open for individuals and providers to define abortion in any way
they choose, even if that means encompassing methods of contraception they believe to be abortion. We
emphatically believe that this ambiguity will undercut women’s access to vital reproductive health
services and information.
The failure to clarify the reach of the proposal has particular implications for key federal programs, such
as Medicaid and Title X, that provide birth control services. Medicaid has a mandatory birth control
benefit, and Title X by definition covers family planning services for low-income women, requiring
grantees to provide contraceptive and other counseling and referrals. If taken to its logical extreme, the
draft regulation could wreak havoc by indicating to health care entities receiving these funds that they
could, without repercussion, deny women access to birth control services. It is unclear how states and
grantees could implement these federal requirements in compliance with this proposed regulation. By
failing to describe how this regulation is meant to interact with laws that guarantee women’s access to
reproductive health care, it could gut state and local protections of women’s right to safe and effective
birth control.
C. The Proposed Rule’s Definition of the Term “Assist in the Performance” is Overly Broad and Could
Expand Who Can Object to Certain Health Services and What Assistance Can be Denied
The proposed rule contains a list of definitions in Section 88.2, including a definition for the term “Assist
in the Performance.”8 That term is included in four paragraphs of the Church Amendments and generally
seems intended to make clear that those who assist in the performance of certain procedures or services
can bow out of such activities for religious or moral reasons.9 The definition included in the proposal,
however, would expand the reach of the law and further constrain patients’ ability to access important
health care services and programs.
1. The proposed rule broadens who is covered. The Department proposes to apply an extremely
broad definition of who is covered by the applicable refusal provisions and, thus, can invoke the right to
refuse or the protections against discrimination. Under the draft regulation, the term “‘Assist in the
Performance’ means to participate in any activity with a reasonable connection to a procedure, health
service or health service program, or research activity, so long as the individual involved is a part of the
workforce of a Department-funded activity.”10 The explanatory language about the definition makes clear
the term is to be read broadly, covering not only licensed health providers but anyone in the workforce –
with the term “workforce” defined so broadly it could cover volunteers, trainees, clerical staff,
contractors, and custodial staff.11 The Department offers the example of “[a]n employee whose task it is
to clean the instruments used in a particular procedure, would be considered to assist in the performance
of the particular procedure.”12 This unnecessary broadening of who is covered by the law could have the
effect of allowing a wide range of individuals in a workplace to dictate, deny, or otherwise interfere with
the health care women receive.
7
Secretary Michael Leavitt, Telephone News Conference (August 21, 2008); see also Rob Stein, Protections Set for
Antiabortion Health Workers, WASH. POST, August 22, 2008, at A1.
8
73 Fed. Reg. at 50282.
9
42 USC §300a-7 (b), (c), (d), and (e).
10
73 Fed. Reg. at 50282.
11
73 Fed. Reg. at 50278.
12
73 Fed. Reg. at 50277.
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2. The proposed rule broadens the scope of the refusal and undermines the physician-patient
relationship. The proposed rule also broadens what falls under the scope of a refusal under the applicable
law. The proposed definition of “Assist in the Performance” states that it includes “counseling, referral,
training, and other arrangements for the procedure, health service, or research activity.”13 This language
seems intended to go well beyond those who perform or participate in a particular service to prevent even
the offering of information or referrals so that patients can seek out the care or services they need. As
such, it threatens to fundamentally undermine the relationship between providers and patients, who will
have no way of knowing which services, information or referrals they may have been denied. It also puts
patients’ health at risk in emergency situations, where decisions about appropriate care must be made
quickly based on accurate information about a patient’s history and the best available health care options.
D. The Proposed Rule Will Undermine and Confuse Efforts to Eliminate Employment Discrimination
Two paragraphs of the proposed rule purport to prohibit employment discrimination against health care
professionals who refuse to participate, or choose to participate, in certain health procedures or services
for religious or moral reasons.14 The proposal provides no additional explanation of these provisions, nor
does it address concerns about how these provisions are intended to intersect with current employment
laws, particularly Title VII of the Civil Rights Act (“Title VII”). Title VII is the landmark employment
discrimination law enacted in 1964 prohibiting discrimination in employment based on race, color,
national origin, gender, and religion. Among its protections, it allows employees to refuse to participate
in job-related activities or provide job-related services on religious grounds and directs employers to
make reasonable efforts to accommodate these employees – recognizing that this may not always be
possible if an employer can show undue hardship. Indeed, an extensive guidance just released in July
2008 by the Equal Employment Opportunity Commission (EEOC), the federal agency charged with the
enforcement of Title VII and other key employment discrimination laws, discusses in great detail the
scope of employers’ obligations to accommodate the religious beliefs of their employees.15 The guidance
includes numerous case examples, including cases in health care settings such as a case involving a nurse
opposed to assisting with abortions, and a case involving a pharmacist opposed to issuing contraception,
both of which show how religious beliefs can be accommodated without causing disruption to patients,
providers, or employers.16
The proposed rule makes no mention of Title VII or its protections, the comprehensive EEOC guidance,
or the careful balancing of employer and employee interests courts have required to ensure respect for
religious beliefs while avoiding discrimination and undue burdens to employers. It does not, for example,
say what steps an institution may take to reasonably accommodate an individual health provider’s
religious objection. Instead, it includes language prohibiting employment discrimination in specific
circumstances against those who perform or assist with, or who refuse to perform or assist with, certain
health services, and ignores the inevitable confusion and potential conflict with other employment
protections. This blanket permission to workers to refuse to provide services they find objectionable or
claim discrimination, thus ignoring the need to consider reasonable accommodations or undue burden,
will only harm relationships between employers and employees – exactly the opposite of what is needed
to ensure fairness when responding to religious or moral objections in the workplace.
Adding further complications, the proposed rule includes no meaningful discussion of its enforcement
implications. Section II of the proposed rule provides a summary of its provisions and indicates the
13
73 Fed. Reg. at 50282.
Proposed Rule, §88.4(c)(1) and (d)(2), 73 Fed. Reg. 50283; see 42 USC §300a-7(c)(1) and (c)(2).
15
Equal Employment Opportunity Comm’n, Compliance Manual, Sec. 12: Religious Discrimination (2008).
16
Id. at §12-IV(A)(3), (C)(3), examples 34 and 43.
14
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Department of Health and Human Services Office of Civil Rights (OCR) will handle all discrimination
complaints.17 While the EEOC has ample experience handling religious accommodation in employment
cases in both health care and non-health care settings, it is unclear to what extent OCR has the same
employment discrimination expertise. The overall capacity of OCR to handle any potential influx of
health care-related employment discrimination cases is also unclear – in FY2007, for example, the EEOC
received almost 2900 charges alleging religious discrimination.18 Yet, the proposed rule makes no
provision for additional enforcement resources for OCR.
The practical problems caused by the potential confusion and enforcement limitations related to the
proposed rule’s employment discrimination provisions could be significant. Under Title VII, claims must
be filed with the EEOC within 180 days of the alleged discriminatory conduct. If employees are confused
about whether they should file their complaints with OCR or the EEOC, or are unaware of the different
jurisdictions of both agencies, they could miss important deadlines and lose out on filing their job
discrimination claims altogether. The proposed rule’s wholesale failure to address any of the potential
problems created by its employment discrimination provisions is troubling and could do serious damage
to efforts to ensure equal employment opportunity, achieve workplaces free of discrimination, and enable
victims of discrimination to vindicate their rights.
E.
The Proposed Rule Will Create Potential Conflicts With State Laws
The proposed rule largely ignores potential conflicts that are likely to arise with state or local laws. The
proposal is silent about whether it is intended to pre-empt state provisions, and if so, which particular
state provisions are targeted. As referenced herein, the prior draft of the proposed rule leaked this past
summer clearly revealed Department objections to certain state laws or bills under consideration. Among
the state laws or bills cited: state statutes requiring employers who provide prescription drug benefits to
cover contraception, state laws guaranteeing access to emergency contraception for rape victims, and state
bill that would consider potential reductions in available health care services in determining whether to
approve hospital acquisitions.19 These laws were identified as “proof” that a problem existed and that
clarification of the three federal refusal/conscience clause statutes was needed.
To the extent the proposed rule purports to provide additional clarity to health care organizations and
patients about the requirements of the Church, Coats, and Weldon Amendments, such an omission of any
discussion about interaction with state laws is troubling. The proposal’s conspicuous silence on state law
questions is likely to result in extensive litigation in the foreseeable future. Health care providers and
related entities will face dilemmas between adhering to state standards of care and paying deference to
employees or religious sponsors with moral objections when deference would interfere with provision of
mandated, comprehensive care. Such dilemmas are likely to lead not only to litigation, but also to the
possible loss of funding, to the detriment of public health. States and state regulatory boards that impose
civil penalties for violation of health care access laws will be thrown into quandary over their ongoing
enforcement efforts, as will courts adjudicating those enforcement proceedings. The confusion and
litigation could reach as far afield as state tort law, under which multiple state courts have found that there
may be liability for actions that the proposed regulations may paradoxically authorize.20 The potential for
17
73 Fed. Reg. at 50277.
Equal Employment Opportunity Comm’n, Religion-Based Charges FY1997-FY2007 (2008) (at
http://www.eeoc.gov/stats/religion.html).
19
Draft Proposed Rule, supra note 4.
20
See, e.g., Troppi v. Scarf, 187 N.W.2d 511 (Mich. Ct. App. 1971) (overruled on other grounds relating to damages
available in a wrongful birth/conception case by Taylor v. Kurapati, 600 N.W.2d 670, 676-81 (Mich. Ct. App.
1999)); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977); Brownfield v. Daniel Freeman Marina
Hospital, 208 Cal.App.3d 405 (Cal. Dist. Ct. App. 1989).
18
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rising litigation costs also will exacerbate concerns about adding to the growth in overall health care
costs. We expect – and fear – that significant and precious resources, which would otherwise go to meet
under-fulfilled health care needs, will be wasted on attempts to resolve uncertainties that the proposed
regulations could create at the state and local levels.
Confusion around the proposal’s impact on state and local laws that promote broad access to
comprehensive and safe health care will undermine important state interests. Many state executives have
expressed concern publicly over the potential erosion of their primary role in regulating issues of public
health and welfare, an area historically and legally reserved to the states. Federal regulation is unable to
take into account the nuances of each state’s law, whereas nearly all states – forty-seven as of September
2008 – have codified conscience clauses.21 Each of these measures works in concert with each state’s
approach to balancing the concerns of ensuring a high standard of care and respecting providers’ religious
and moral convictions. At the same time, more than half of the states have acted to protect access to
health care services.22 State legislation and regulations currently ensure insurance coverage and
pharmacist provision of contraceptives, comprehensive and equal health care regardless of sexual
orientation, information about and provision of emergency contraception to rape victims, and publishing
of objective information about abortion and family planning care and providers. A number of cities
likewise have enacted laws the applicability of which would become unclear upon promulgation of the
proposed regulations. Localities and states have substantial expertise in this field, and ultimately they
must assume much of the responsibility for the human consequences of disruptions in the provision of
medical care.
Conclusion
The National Partnership strongly opposes the proposed rule – there is little evidence suggesting the
proposal is needed and it creates the appearance of putting political preferences ahead of sound health
care decisions. Injecting politics into health care rulemaking erodes public confidence in our health care
system and detracts from the integrity of the regulatory process. We urge you to abandon this effort.
Sincerely,
Debra L. Ness
President
21
Guttmacher Institute, State Policies in Brief: Refusing to Provide Health Services 2 (2008),
http://www.guttmacher.org/statecenter/spibs/spib_RPHS.pdf.
22
See, e.g., Guttmacher Institute, State Policies in Brief: Insurance Coverage of Contraceptives 2 (2008),
http://www.guttmacher.org/statecenter/spibs/spib_ICC.pdf; Guttmacher Institute, State Policies in Brief: Emergency
Contraception 2 (2008), http://www.guttmacher.org/statecenter/spibs/spib_EC.pdf.