Countdown to Conscience Clause Regulation

By Rachel Walden — September 22, 2008

[Originally posted at RH Reality Check. The comment period on the proposed rule discussed below ends this week on September 25.]

Back in July, a widely-decried proposal leaked out of U.S. Department of Health and Human Services (HHS). The new regulation explicitly enabled providers to define contraception as abortion and therefore refuse to provide it, and prevented clinics and other entities that receive federal funds from refusing to hire individuals who hold this belief — in contrast to the medical definitions of pregnancy and abortion. The proposal would have accepted as legitimate the redefinition of “pregnancy” and “human life” to begin before a fertilized egg has implanted, ignoring the medical consensus and fact that many fertilized eggs never proceed to implant and become successful pregnancies.

On August 21st, the official version of the proposed rule was released, and while some of the problematic language about contraception and the beginnings of life was removed, the new version did little to quell concerns that the move was designed to limit women’s access to reproductive health care. Framed by HHS as protecting “physician conscience” — prohibiting providers from being forced to provide procedures such as abortion and sterilization to which they may object on moral or religious grounds — the officially proposed rule is broad and ill-defined enough to leave considerable room for debate about what it would mean in practice if approved.

Although protections of physician conscience already exist in federal law, the HHS proposal expands the list of who would be covered by the protections to include support staff who are not directly involved with performing “objectionable” procedures, such as those “whose task it is to clean the instruments.” The effect of this expansion would be to prevent federally-funded clinics and other entities from refusing to hire or being able to fire or discipline those who object to performing even basic and necessary general support services.

While the leaked proposal made clear that it would allow providers to define abortion however they liked – extending to forms of contraception that could hypothetically but have not been proven to at times prevent implantation of a fertilized egg – the official release does not address the definitions of the protected procedures at all, despite explicitly defining less controversial terms such as “individual” and “workforce.” Lacking more explicit support for medically accepted definitions of contraception and abortion, the proposal might be interpreted to override state provisions – for example, those that require even Catholic hospitals to provide or refer for emergency contraception. Others have suggested that the proposal may jeopardize Title X-funded providers of family planning services.

HHS Secretary Michael Leavitt has claimed that the proposal was not “intended” to affect access to contraception or abortion, while neglecting to explain why the proposal would be needed if it is intended to apply only to abortion as currently medically defined — as providers are already protected from being forced to perform this procedure. See this previous post from RHRC’s Emily Douglas for more discussion of how the proposed rule may limit access to reproductive health care despite Leavitt’s statment that the proposal is only meant to address “the legal right medical practitioners have to practice according to their conscience and patients should be able to choose a doctor who has beliefs like his or hers.”

HHS Obfuscates During Commenting Period

If you’re left scratching your head about the justification for the proposed rule thus far, there’s more. In a previous post for RH Reality Check (and OBOS), I described Leavitt’s misunderstanding — or willful mischaracterization — of his own justification for the new rule, the ob/gyn certification issue. Leavitt has repeatedly claimed that without adopting the new rule, ob/gyns who object to abortion might lose their certification. The certifying body, the American Board of Obstetrics and Gynecology, has clearly stated that this is not true. ABOG explained this to Leavitt in a letter this March, but released a public letter to the Secretary when the official proposal was released, calling it a “grossly untrue and unfair allegation.”

The obfuscation doesn’t stop with Leavitt’s rationale, however — it has apparently extended to technical issues on the proposed rule as well. HHS has repeatedly made it difficult for advocates to follow and respond to the conscience discussions, starting with Secretary Leavitt’s initial blog post on the issue. Posted on August 7 at one URL, the web address changed by August 9 after a flood of comments opposing the proposal, and changed again by August 14. Visitors to the blog who had been referred to the initial URLs received only a “not found” error – until the URL was later reused for the Secretary’s third post on the topic on Aug 21. I received a tip from a technical staffer that the number of comments “caused problems with the blog and they had to import the post multiple times.” It is not at all clear why that would be the case or require a URL change.

These problems have carried over into the public comment period. A lengthy delay preceded the posting of the official docket and the release of submitted public comments. HHS released the proposed rule on August 21, and appeared in the system for public comment on August 26; the public comment period officially opened on that day, and ends on September 25. But on September 3, the URL and docket number for the rule changed. A helpful representative explained that this occurred because the site first posts a temporary docket, and the agency (HHS) later creates a permanent docket. I was assured that any comments made on the initial release would carry over, but many organizations and individuals who had publicized the comment period may have been sharing a link for rule that will no longer work. (The correct URL for submitting your comments is presently

I was less satisfied with the response from HHS as to why, as of September 11 — 17 days into the public comment period — none of the comment submissions had been made available for public viewing. The staffer indicated that this was because HHS simply hadn’t done it yet, stating “The agency has not yet posted any of the comments submitted,” and referring me to the docket for the contact information of the specific person at HHS who is supposed to address any questions. I received no immediate response to my email, but discoverd that overnight on the day of my email, more than 1,100 comments suddenly appeared on the site. The response that did arrive to my query as to why no public comments had been posted was as follows, in its entirety: “Please use procedures in the Federal Register to ask questions about the conscious [sic] regulations.”

Advocates Talk Back

Although the comments are not very easy to browse, you can read the submitted comments (1,315 of them as of this writing) here. While some comments are in support of the proposed rule, many express objection. Some commenters have asked that health care providers be required to post notices as to which procedures, drugs and services they refuse to provide. Others note the problem of rural and underserved communities and low-income women where access to reproductive health care may be nonexistent if local providers “exert her/his moral authority on that community.”

The lack of definition in the proposal seems to be a concern on both sides of the issue. One supporter of the proposal notes the lack of definition, explaining that “Leaving ‘abortion’ undefined is a two edged tactic. It might serve to allow these regulations to be instituted, but unfortunately it will lead to very uneven application of the non-discrimination regulations.” Another commenter who objects to move asks that “At a minimum, the regulation should include explicit language clarifying that birth control is not at risk and that our current reproductive rights, guaranteed by law, will not be jeopardized.”

If you would like to submit your comment prior to the Sep 25 deadline, please go to view the proposed rule and make your comment online. The proposal document also contains instructions for submitting comments via regular mail.

One response to “Countdown to Conscience Clause Regulation”

  1. what is going on with this issue? Are there any updates now that the comment period has passed and, hopefully, they’ve been reviewed?

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