The HHS Ups the Ante .
DATE: August 12, 2008

TIME: 9:00 AM EST

The Department of Health and Human Services (HHS)is considering a regulation that would essentially give teeth to already existing legal protections to conscientious objections in healthcare. The draft regulation denies federal funding to any hospital, health plan or other healthcareentity that fail to accommodate employees who, for reasons of conscience, do not want to assist in the performance of certain medical interventions. The existing federal statutes, 1 as explained in the draft regulation,

...prohibit recipients of certain federal funds from coercing individuals into participating in actions they find religiously or morally objectionable. These same provisions also prohibit discrimination on the basis of one’s objection to or participation in specific procedures, including abortion or sterilization, or one’s participation in or refusal to participate in abortion or sterilization procedures.

The draft language of the new regulation describes the healthcare industry as “largely uninformed” about conscience protections already enshrined in US law in the form of these already existing statutes. Consequently, the new regulation now under consideration by HHS proposes to give teeth to these existing statutes by requiring “recipients of Department funds to certify compliance with these requirements as a prerequisite to the receipt of funds.” While recipients of such funding must certify compliance with federal nondiscrimination laws, federal conscience protections are not mentioned in the paperwork currently used for such certification. The new regulation would render certification of conformity specifically with those protections a prerequisite for federal funding.

The draft regulation drew considerable attention in the press earlier this month—including articles in the Washington Post and the Wall Street Journal (“Treating the Pill as Abortion”)—when it was noted that the proposed regulation defined ‘abortion’ in a manner that would include most contraceptives (both chemicals and devices) within the category of those things the regulation would deem possible instrumental causes of elective abortions. The draft defines abortion as "any of the various procedures -- including the prescription, dispensing and administration of any drug or the performance of any procedure or any other action -- that results in the termination of life of a human being in utero between conception and natural birth, whether before or after implantation” (emphasis my own).

Reacting to a growing uproar from pro-abortion groups, HHS secretary Michael Leavitt attempted to clarify things on his blog. “An early draft of the regulations” wrote Leavitt, “found its way into public circulation before it had reached my review. It contained words that lead some to conclude my intent is to deal with the subject of contraceptives, somehow defining them as abortion. Not true. The Bush Administration has consistently supported the unborn. However, the issue I asked to be addressed in this regulation is not abortion or contraceptives, but 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.”

Fair enough. On the one hand, there is the truth of the matter: many common contraceptives can have (or as in the case of IUD’s, have as their primary working mechanism) an abortifacient effect by preventing the in utero implantation of a newly created human embryo. Pro lifers could not be happier if this fact were to be clarified and enshrined in a federal statute. That’s a strategy well worth pursuing in the future, as it likely doomed to failure in our current cultural milieu; Leavitt will undoubtedly edit the draft to avoid the logical association of contraceptives with abortifacients. Hopefully he will do so while maintaining language that defines abortion as the termination of a life of a human being either before or after implantation—I see no reason why he couldn’t.

But even if Leavitt were of a mind to enshrine the contraception-abortion link in a federal regulation, this newly proposed conscience protection regulation is not the place to do it. A conscience protection regulation with teeth is too urgently needed now. Linking it to a redefinition of contraception—as Leavitt certainly understands—would surely jeopardize it.

What makes it urgent? In a lengthy introductory section entitled “The Problem,” the draft reviews a brief litany of recent incidents which would appear to suggest that incisiveness of “an increasingly pervasive attitude,” namely, “that healthcare personnel and institutions should be required to violate their consciences by providing or assisting in the provision of controversial medicine or procedures, or else face being blacklisted, excluded from practice, terminated from their jobs, or otherwise subjected to discrimination.” Here the draft enumerates, among other instances, a New York Times editorial suggesting that doctors unwilling to violate their consciences (or what the Times editors euphemistically refer to as engaging in a practice that “conflicts” with the physician’s “values”) should give up the practice of medicine; the recent passage of state laws in New York 2 and California 3 which would require entities such as Catholic Charities to offer employee prescription drug benefits to cover contraception; and a Connecticut law enacted in May 2007 requiring all hospitals—including Catholic ones—to distribute so-called ‘emergency contraception’ (Plan B) to rape victims.

If the regulation is enacted, federally-insured health plans, hospitals, health clinics and other institutions receiving federal funds will have to certify in writing that they will protect employees’ right to conscience or else risk forfeiting federal funding. Of late, I have had to deal personally with a growing number of incidents in which a healthcare professional is essentially being coerced into acting against his or her conscience. 4 For Catholic healthcare professionals this pressure seems to be reaching a breaking point. The struggle to maintain conscience protections in the healthcare professions now looms as one of the next great conflicts in the battle for a culture of life. I salute, commend and support Secretary Leavitt’s efforts in that regard.

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1 The Church Amendments (42 U.S.C. § 300a-7), Public Health Service (PHS) Act §245 (42 U.S.C. § 238n), and the Weldon Amendment (Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 508(d), 121 Stat. 1844, 2209).

2 NY CLS Ins § 3221 (2007).

3 Cal Ins Code § 10123.196 (2006).

4 As noted in the draft regulation, in May 2005, the Catholic Medical Association reported “receiv[ing] numerous reports of pressure and persuasion being exerted on medical students, clerkships, and residents in public and private hospitals to conform to institutional policies and ‘accept their share’ of duties requiring performance of participation in activities contrary to Catholic ideology.”

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