Aug
A proposed HHS rule that Secretary Mike Leavitt says aims to protect health workers who refuse to participate in abortions based on religious beliefs will be published in the Federal Register Aug. 26 and could go into effect after a 30-day public comment period, BNA reports. Leavitt removed from the rule a section that would have required a broader definition of the term “abortion” by referring to the procedure as “anything that affects a fertilized egg.” However, the regulation still includes a requirement for all recipients of federal funding to certify that they will not fire or refuse to hire employees who have “a religious objection to any health service, no matter how central to the job or health of the woman” (BNA, 8/25). Both critics and supporters of the rule say it is written broadly enough to protect health workers who refuse to dispense birth control pills, emergency contraception and other forms of contraception (Daily Women’s Health Policy Report, 8/22).
According to BNA, the provision could come into conflict with a recently revised section in the Equal Employment Opportunity Commission’s compliance manual, which states that if there is not a qualified pharmacist present who is willing to dispense contraceptives, it may be an undue hardship for the business to accommodate a refusing pharmacist.
BNA reports that disputes over the religious rights of employees have arisen in state legislatures, pharmacy boards and courts. Four states expressly have allowed pharmacists to refuse to dispense contraceptives; seven have required them to dispense lawfully prescribed medication; and, according to data from the National Women’s Law Center, pharmacists are suing their employers for religious discrimination in the workplace. Leavitt, who drafted the regulation in July for informal review within HHS, said he had become “aware that certain medical specialty groups were adopting requirements which potentially violate a physician’s right to choose whether he or she performs an abortion.” Leavitt added that he wrote to these groups “protesting their actions” but found their response to be “dodgy and unsatisfying.” He said, “If [HHS] issues a regulation on this matter, it will aim at one thing — protecting the right of conscience of those who practice medicine.”
BNA also reports that Leavitt singled out the American College of Obstetricians and Gynecologists and the American Board of Obstetrics and Gynecology in an Aug. 21 statement, saying an ACOG ethics committee opinion from earlier this year could force physicians to refer patients for abortions or “risk losing their board certification.” According to BNA, both groups have denied that the ethics opinion affects physician certification by the Board of Obstetrics and Gynecology or membership in ACOG.
Although Leavitt abandoned the broader definition of abortion, BNA reports that thousands of opponents objected to the rest of the regulation, which would allow all health care providers refusal rights and could restrict patient access to lawful and needed health care services. Jerry Brown (D), California’s attorney general, said the proposed regulation also would limit the state’s ability to enforce a California law requiring employer health coverage for contraception. Jill Morrison, senior counsel of NWLC, said that a possible result of refusal rights is that a group of people might try to be hired at a family planning facility “with the specific objective of obstructing justice,” adding, “If that took place, there wouldn’t be anything you could do about it.” Gretchen Borchelt, another senior counsel at NWLC, said the regulation “makes it clear that its goal is to undermine state laws such as those requiring pharmacists and pharmacies to dispense emergency contraception to rape survivors, and health insurance plans to cover contraception.”
However, BNA reports that other organizations support the proposed regulation. John Brehany, executive director of the Catholic Medical Association, said that the group “is very supportive of Secretary Leavitt and the need for the new regulation,” adding, “Our members think the laws on the books are not comprehensive and not consistent from state to state” since health care providers may face employment discrimination, lose their licenses or be forced to violate their consciences.
Gene Kapp, spokesperson for the American Center for Law and Justice, said the organization has not been tracking the regulation so far. However, once it is added to the Federal Register, “we would quite likely be engaged in the issue,” Kapp said (BNA, 8/25).
Editorial
According to a Seattle Times editorial, the regulation “is unnecessary and misses a critical element: respect for abortion rights.” Although Leavitt removed the expanded definition of abortion from the regulation, the “White House’s assault on women’s health care rights remains,” according to the Times. The editorial says that the “broad wording in the rule changes can be interpreted to extend to oral contraceptives and emergency contraception” and that “[s]uch a broad interpretation would jeopardize funding for Medicaid and Title X.” The editorial adds that “[p]ressure should be brought to bear” on Leavitt, adding that the “proposed changes must include explicit assurances they will not be used to block access to birth control and family planning.” The editorial concludes that “[o]therwise, there is no choice but to see the rules as an attack on women’s reproductive health rights” (Seattle Times, 8/25).
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