HHS Publishes New "Conscience" Rule -- What's Next?

By Christine Cupaiuolo — December 18, 2008

This just in, from the Washington Post:

The Bush administration today issued a sweeping new regulation that protects a broad range of health care workers — from doctors to janitors — who refuse to participate in providing services that they believe violates their personal, moral or religious beliefs.

The controversial rule empowers federal health officials to cut off federal funding for any state or local government, hospital, clinic, health plan, doctors’ office or other entity if they do not accommodate employees who exercise their “right of conscience.” It would apply to more than 584,000 health care facilities.

“Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience,” Health and Human Services Secretary Mike Leavitt said in a statement.

The regulation, which was issued just in time to take effect in the 30 days before the change of administrations, was sought by conservative groups, abortion opponents and others as necessary to safeguard workers from being fired, disciplined or penalized in other ways.

Women’s health advocates, family planning proponents, abortion rights activists, members of Congress and others condemned the regulation, saying it would create major obstacles to a variety of health services, including abortion, family planning, end-of-life care and possibly a wide range of scientific research.

We knew this was coming, despite strong opposition to the rule — including 200,000 commments filed against it.

The rule goes into effect in 30 days, just days before President-elect Barack Obama’s inauguration. The agencies and medical facilities affected have until Oct. 1, 2009 to provide written certification of their compliance. If they don’t comply, they risk losing federal funding.

It’s mind-boggling that this became a priority of the Bush administration in its final months. In addition to the real harm this will cause both men and women seeking safe and honest health information and services, it’s also going to cost a projected $44 million to implement and wreak havoc with employment regulations.

And it’s not going to reduce abortions; it will be a funding sinkhole, just like abstinence-only programs.

“The new regulations will make it especially difficult for some 17 million low-income women to get the family planning services and information they need to prevent unintended pregnancy,” said Debra Ness, president of the National Partnership for Women & Families.

The American College of Obstetricians and Gynecologists, American Medical Association, National Association of Chain Drug Stores and American Hospital Association opposed the rule, as did three officials from the Equal Employment Opportunity Commission — including its legal counsel, who was appointed by President Bush. In fact, the EEOC critics warned the proposal would overturn 40 years of civil rights law prohibiting job discrimination based on religion.

In addition, 28 senators, more than 110 House members and 13 state attorneys voiced their opposition.

About that public comment period, Emily Douglas writes today:

The administration made almost no substantive changes to the regulation following the period of public comment, says Adam Sonfield, senior public policy associate at the Guttmacher Institute. “The 200,000 comments in opposition to the rule they dismiss,” says Sonfield. “They pretend to respond directly to them, but they actually don’t.”  The only major substantive change the administration made to the rule is to expand the definition of the workforce the rule applies — for instance, it now includes contractors.

So what’s next? The Wall Street Journal reports that the new Obama administration has already begun “considering how and when to undo it,” but the story also notes that it won’t be easy to undo.

“The rule could be blocked by Congress, or Health and Human Services could begin the laborious process of issuing a new regulation reversing course. Officials close to the transition have signaled that they intend to begin the regulatory process anew,” writes Laura Meckler.

Douglas explains the process in more detail:

The rule must now be submitted to both the Government Accountability Office and both houses of Congress.  Congress has a period of time to review the rule (and because of the timing of the rule’s publication, this period will stretch into the 111th Congress), during which time a motion to disprove can be introduced.  If the motion to disprove is passed by both houses of Congress and signed by the President, the rule cannot be enforced or defended in court. If this avenue fails, Congress could refuse to appropriate funds for implementation of the rule, or Congress could pass the legislation introduced by Sens. Hillary Clinton and Patty Murray that would prohibit HHS from implementing the regulation.

Here’s Clinton’s statement concerning the legislation she and Murray introduced.

Related: For more background, our previous posts on this topic are listed here, along with Rachel Maddow’s interview with Princeton political science professor Melissa Harris-Lacewell, who further explains what’s at stake.

2 responses to “HHS Publishes New “Conscience” Rule — What’s Next?”

  1. This is so outrageous. I really hope all of the sane members of Congress and President Obama can figure out a way to unravel this messed up rule.

  2. You know what’s even better than us relying on the mercy of idiot politicians? Beating them at their own game.

    For example, with this new HHS rule. Forget about the negative impact it will have on women’s health. Nobody in power cares about that! What they do care about is money and scoring political points.

    To wit, follow the money. Read the mandatory financial impact analysis in the rule; it takes about 2 minutes to figure out it’s an obvious sham. The HHS has deliberately (and egregiously) manipulated it to come out with an under $100 million cost estimate in order to escape review.

    Make a stink in the media about how the departing HHS administration is trying to get away with financial fraud in these hard economic times and watch politicians hop to action.

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