Bush Administration Issues Final 'Conscience' Rule; Will Take Effect Before Obama Takes Office

As expected, the Bush administration on Thursday issued a final version of a new provider "conscience" rule that allows employees of entities that receive federal grants to refuse to provide medical information and services they object to based on ethical, moral or religious beliefs, the Washington Post reports. The Post reports that the 127-page rule was issued "just in time to take effect" in the 30 days before President-elect Barack Obama takes office. It will permit the federal government to cut off funding to any state or local government, hospital, health plan or other entity that does not accommodate employees who refuse to take part in care they object to for ethical, moral or religious reasons, according to the Post. The rule will cost more than $44 million to implement. The more than 584,000 entities that the rule will affect have until Oct. 1 to submit written certification of their compliance or risk losing federal funding (Stein, Washington Post, 12/19). Outgoing HHS Secretary Mike Leavitt, who issued the regulation, said, "If, despite the department's efforts, compliance is not achieved, HHS officials will consider all legal options, including termination of funding and the return of funds paid out in violation of the non-discrimination provisions" (Stout, New York Times, 12/18). The rule will be published today in the Federal Register and will take effect the day before Bush leaves office (Savage, Los Angeles Times, 12/19).

According to the Post, the rule "comes at a time of increasingly frequent reports of conflicts between health care workers and patients," such as pharmacists refusing to dispense emergency contraception and birth control. Conservative groups and abortion-rights opponents sought the rule "to safeguard workers from being fired, disciplined or penalized in other ways," the Post reports. Leavitt said, "Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience" (Washington Post, 12/19). Leavitt wrote in the preamble to the rule that he is concerned about "an environment in sectors of the health care field that is intolerant of individual objections to abortion or individual religious beliefs or moral convictions."

Leavitt added that the rule "protects the right of medical providers to care for their patients in accord with their conscience" and that it was needed to enforce conscience laws passed after the Roe v. Wade ruling. The Los Angeles Times reports that Congress in the 1970s passed laws clarifying that physicians are not required to perform abortions under Roe, and subsequent laws have declared that "no individual shall be required to perform or assist" in any medical research or procedure "contrary to his religious beliefs or moral convictions" (Los Angeles Times, 12/19).














Impact of Rule
Leavitt initially had said the rule was primarily aimed at protecting workers who opposed abortion, although the final version includes a broad array of protections that will extend to workers who refuse to dispense birth control pills, EC or forms of birth control that they equate with abortion. According to the Post, the rule also could "protect workers who object to certain types of end-of-life care or to withdrawing care, or even perhaps providing care to unmarried people or gay men or lesbians" (Washington Post, 12/19). The rule's protections extend to any workers who refuse to "assist in the performance" of procedures. The final rule clarifies that the phrase applies to "any activity with a reasonable connection to a procedure, health service or health service program or research activity," and includes unpaid volunteers and trainees (BNA Health Care Daily Report, 12/19).

Women's health advocates have said that the rule could create major obstacles to reproductive health care, including abortion services, family planning and infertility treatments. Hospital and clinic officials also have said that the rule could force them to hire employees who will refuse to participate in abortion or in vitro fertilization procedures. Critics particularly are concerned that the rule will allow workers to provide patients with incomplete information about their medical options, the Post reports. For example, a worker might withhold information about EC from a rape survivor.

The Post reports that 28 senators, more than 110 House members and more than one dozen state attorneys general have voiced opposition to the rule. Medical organizations including the American Medical Association, the American College of Obstetricians and Gynecologists and the American Hospital Association also oppose the rule. Supporters of the rule include the U.S. Conference of Catholic Bishops, Concerned Women for America and the Catholic Health Association.

Opponents Discussing Repeal Options
The finalization of the rule has "se[t] off an intense battle over opponents' plans to try to repeal the measure," the Post reports. Nick Shapiro, a spokesperson for Obama, said Obama plans to "review all eleventh-hour regulations and will address them once he is president" (Washington Post, 12/19). Obama previously has criticized the rule, saying in August that it "complicates rather than clarifies the law" and "raises troubling issues about access to basic health care for women" (Young, The Hill, 12/18).

According to the Los Angeles Times, Obama could revise the rule after he takes office on Jan. 20, "but the process would probably be months long." A "speedier option" for repealing the law would be for Congress to issue a resolution rejecting late rules issued under the Bush administration, and Reps. Louise Slaughter (D-N.Y.) and Diana DeGette (D-Colo.) have said that they would lead efforts to do so (Los Angeles Times, 12/19). A bill to repeal the rule was introduced in November by Sens. Patty Murray (D-Wash.) and Hillary Rodham Clinton (D-N.Y.), and similar legislation is pending in the House, according to the Post. Murray said that the rule "threatens the health and well being of women and the rights of patients across the country," adding, "We will not allow [it] to stand" (Washington Post, 12/19). Clinton said that the "ideologically driven" rule "threatens access to critical health care services and information while upending the carefully crafted religious protections for patients and providers already in law" (BNA Health Care Daily Report, 12/19). Many abortion-rights advocacy groups are preparing to support efforts to repeal the rule, the Post reports. Donna Crane, policy director for NARAL Pro-Choice America, said that the group is "focused on the executive branch" because Congress has a limited amount of time to take action.

The Post reports that supporters of the rule are beginning to organize efforts to block an attempt to repeal the rule. David Stevens of the Christian Medical Association said the group "will do all in our power to ensure that health care professionals have the same civil rights enjoyed by all Americans." Tony Perkins, president of the Family Research Council, said the group "will marshal a nonpartisan, grassroots coalition to prevent any weakening of current conscience protections" (Washington Post, 12/19).

Comments
Many opponents of the rule issued statements in response to its finalization. Cecile Richards, president of Planned Parenthood Federation of America, said, "We look forward to working with President-elect Obama and leaders in Congress to repeal this disastrous rule and expand patients' access to full health care information and services, not limit it" (Los Angeles Times, 12/19). Debra Ness, president of the National Partnership for Women and Families, said in a statement that the rule "will make it easier for providers to refuse patients vital health services and harder for patients to learn about their health status and options" (Fox, Reuters, 12/18). Ness added that the regulations "leave the term 'abortion' undefined, so individuals and institutions are free to classify birth control as abortion and restrict related information and services." She also said that "[c]urrent law already allows employees at federally funded clinics and other medical providers to refuse to provide abortion or sterilization services if doing so violates their religious or moral beliefs. There was no need for today's action" (Ethridge, CQ Healthbeat, 12/18). Nancy Northup, president of the Center for Reproductive Rights, said, "In a matter of months, the Bush administration has undone three decades of federal protections for both medical professionals and their patients. It replaced them with a policy that seriously risks the health of millions of women, then tried to pass it off as benevolent" (Freking, AP/Philadelphia Daily News, 12/19).

Broadcast Coverage
The following summarizes broadcast coverage of the rule.
~ MSNBC's "The Rachel Maddow Show": The segment includes a discussion with DeGette about the rule. DeGette said the rule is "so broad" that it would "allow employees of health care facilities to discriminate against patients just on a case-by-case basis." She also discussed plans for legislation to repeal the rule (Maddow, "The Rachel Maddow Show," MSNBC, 12/18).

~ NPR's "Day to Day": The segment includes a discussion with NPR health policy correspondent Julie Rovner about the rule. Rovner said that the rule would expand existing "conscience" protections "beyond doctors and nurses to basically anyone who's associated with health care and say that ... no one has to do basically anything that violates any of their beliefs even if they're only tangentially related to the act of providing health care services" (Brand, "Day to Day," NPR, 12/17).

~ NPR's "All Things Considered": The segment includes comments from Richards; Connecticut Attorney General Richard Blumenthal; Leavitt; and Tom McClusky, vice president of government affairs for the Family Research Council (Rovner, "All Things Considered," NPR, 12/18).


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