Proposed Bush Administration Rule
To Expand Refusal Rights of Health Care Workers and Institutions
Is Back-Door Attempt to Limit Access to Contraception
On August 26, 2008, the Bush Administration proposed a politically-motivated
regulatory change that would significantly expand the rights of individuals and
institutions to refuse to provide or help provide health care services that offend their
religious beliefs or moral convictions. While this poorly-drafted rule raises as many
questions as it answers, it is clear that the Department of Health & Human Services
(HHS) intends it as a back-door assault on women’s reproductive health care.
A draft of the rule, leaked in mid-July, was greeted with overwhelming opposition from
Congress, state-level officials, the medical community, consumers, and a wide variety of
health, research and advocacy organizations because of its potential to limit access to
reproductive health services. Despite some language changes, the version that was
proposed raises many of the same concerns, including that it would leave the term”
abortion” open to interpretation.
By protecting any individual who refuses to participate in any health service program or
research activity funded by HHS, the proposed rule fails to balance patients’ needs
against health care workers right to refuse to provide services for moral or religious
reasons. It also threatens unduly harsh penalties, and is sure to sow confusion because it
is vague, broad in scope, and fails to clarify any interactions with existing federal and
state employment laws.
Public comments on the rule are due no later than September 25, 2008.
Politically-Motivated Rule Is a Solution in Search of a Problem
HHS claims to be responding to concerns that intolerance toward health care
professionals with certain religious beliefs has discouraged some from entering health
care professions. In response, the new rule broadly interprets three provisions of existing
federal law (known as the Church, Coats, and Weldon amendments after their
Congressional sponsors) that have long made it illegal for federally funded clinics and
other medical providers to require an employee to provide abortion or sterilization
services if they clash with his or her beliefs. It requires most recipients of federal health
funds to provide written certification of compliance with all three statutes
Proposed Rule Expands “Who” Can Deny Services
Existing laws make it illegal for federally funded clinics and other medical providers to
require employees to provide abortion or sterilization services if doing so clashes with
their beliefs. They generally apply to health care professionals such as doctors and
nurses who are directly involved with the provision of abortion or sterilization services,
although some laws are written narrowly to apply only to individuals or to provider
training programs.
The proposed rule goes much further – allowing any member of a health care institution’s
workforce with a “reasonable” connection to the service to raise an objection, without
ensuring that patients’ needs will in some way be met. Consequently, under the proposed
rule, a wide variety of individuals including volunteers, clerical and janitorial staff
presumably would have the right to undermine patient access to health care information
and services. For example, a receptionist hired to schedule appointments in a publicly
funded family planning clinic could refuse to do so for certain patients.
Proposed Rule Expands the Types of Services Providers Can Refuse to Provide
The proposed rule broadens the types of services health care workers can refuse to
provide. It defines “Assist in the Performance of” health care related tasks to include
“counseling, referral, training, and other arrangements for the procedure, health service,
or research activity.” As such, if the proposed rule is adopted, patients seeking care at a
health care facility that receives direct or indirect funds from HHS may no longer be
assured that they will even receive information about health care options, including the
option of safe and legal abortion.
This threatens to undermine the relationship between providers and patients, who will
have no way of knowing which services, information or referrals they may have been
denied.
The proposed rule could let providers refuse to provide not just birth control and abortion
services but any medical treatment they find morally objectionable, i.e. end-of-life
directives, fertility care, HIV/AIDS care, to name a few. This ambiguity raises critical
issues for health care delivery in America.
Moral or Religious Objections of Health Care Workers Take Precedence Over
Needs of Patients and Employers
Currently, claims of religious discrimination in the workplace are governed by an
extensive body of laws, regulations and court precedent that balance the religious rights
of workers with the practical needs of employers. The proposed rule seems to conflict
with federal employment law under Title VII of the Civil Rights Act, which requires an
employer to reasonably accommodate the religious practices of an employee or
prospective employee, unless doing so would create an undue hardship for the employer.
The proposed rule seems to give employees an unfettered ability to opt out of activities
they find objectionable, undermining the careful balance under Title VII that
accommodates the religious beliefs of all employees – including health care providers –
while also allowing employers to ensure that patients get the services and information
they need. Title VII allows individuals to exercise religious beliefs, while recognizing
that employers don’t necessarily have to hire or retain individuals if there is no way to
reasonably accommodate them. In failing to even mention Title VII or the existing
comprehensive Equal Employment Opportunity Commission guidance, the proposed rule
will likely cause confusion among employers, employees, and patients.
The proposed rule also does nothing to explain what steps an institution may take to
reasonably accommodate a provider’s religious objection, while still meeting the health
care needs of the patient. In fact, it strikes no balance at all – presenting a faustian choice
for employers who must either deny patients access to services to accommodate a
worker’s religious objection, or lose federal funds. Absent any provisions addressing the
practical needs of employers, expanding the universe of individuals who can raise an
objection would increase opportunities to deny patients access to care and obstruct
institutions ability to offer the very services they receive federal funding to provide.
For example, publicly funded family planning clinics receive government funds to
provide contraceptive services mainly to low-income women who otherwise would lack
access to such care. It is reasonable to assume that health care providers employed in
these clinics have no objection to providing contraceptive services. Under the proposed
regulation, they would now be forced to accommodate religious objections to birth
control raised by volunteers, receptionists, janitors, etc, regardless of the impact on
patients and without regard to the impact on the clinic’s core mission.
Ambiguity in Proposed Rule Undermines State Laws that Expand Access to
Contraception
The proposed rule modifies the onerous draft leaked in mid-July, which would have
redefined abortion to include commonly used FDA-approved methods of birth control.
In doing so, it would have allowed individual providers and institutions who equated
birth control with abortion to refuse to provide these services.
Instead of proposing a definition of abortion consistent with the consensus of the medical
community and existing federal law, the new HHS proposal drops the abortion definition
entirely, leaving it open for interpretation. This ambiguity creates a potential for
hospitals, pharmacies, insurance plans and other entities to define abortion in ways that
limit access to birth control.
When asked whether the regulation could allow for restricted access to contraception,
HHS Secretary Leavitt stated: “This regulation does not seek to resolve any ambiguity in
that area.” It is this lack of clarity that could undercut women’s access to vital
reproductive health information and services. For example, many states have laws
promoting greater access to contraception including, those requiring insurance plans that
provide prescription drug coverage to include coverage of contraception; laws requiring
pharmacies to fill valid medical prescriptions; and laws that require hospitals to offer
emergency contraception to rape survivors. However, the proposed regulation could
prevent enforcement of these laws because impacted entities (e.g., health insurance plans,
pharmacies, hospitals) could object to providing birth control by declaring that they
believe it to be abortion. Similarly, the lack of clarity complicates states’ administration
of health programs like Medicaid and the Title X family planning program as to
requirements that the programs provide contraceptive counseling and services.
Proposal Could Impede Biomedical and Behavioral Research
The proposed rule could have a substantial impact on research activities at federallyfunded hospitals and academic, nonprofit and corporate research institutions. It prohibits
a broad array of HHS-funded entities, including post-graduate physician training
programs, hospitals, laboratories, universities and think tanks, from discriminating
against any personnel who refuse to perform, or assist in, any research activity or service.
Without additional guidance about how research institutions should balance the needs of
their employees with the needs of their research programs — like that provided under
Title VII — this rule could adversely affect a wide range of research efforts, including
federally-funded stem cell research, research involving animal testing, and research
intended to help protect U.S. soldiers from biological weapons.
Proposed Rule is Irresponsible Public Health Policy
This proposal is an 11th hour political ploy that puts ideology ahead of public health.
HHS claims that a climate of religious intolerance is preventing qualified individuals
from entering health care professions, but offers absolutely no evidence to substantiate
these claims. Instead of balancing the needs of health care professionals and patients, the
proposed rule is sure to invite confusion as well as create new barriers that prevent
patients from accessing the health care services and information they need.
To propose policies that could limit health care access is especially egregious in light of
our nation’s health care crisis. Millions of Americans are underinsured or have no health
insurance, and 17.5 million women need publicly funded contraceptive services. Given
the unmet need for basic health care services, the Bush Administration should be working
to increase access to health care rather than erecting additional barriers.
September 2008