HHS releases proposed rule on conscientious objections that would protect providers who refuse to perform abortions

HHS Secretary Mike Leavitt on Thursday announced plans to implement a regulation intended to protect health care providers and other workers from disciplinary measures if they refuse to provide abortions or refer patients to other providers for abortions because of personal, religious or moral reasons, the Washington Post reports.

Under the proposed regulation, federal officials could withdraw federal funding from more than 584,000 hospitals, clinics, health plans, physicians and other entities if they do not accommodate employees who refuse to participate in a procedure or medical service to which they object (Stein, Washington Post, 8/22).

If the proposed regulation takes effect, health institutions would have to certify in writing that they are complying with the rule. The proposed regulation also would establish a system for enforcing conscience protections in three separate federal laws (Alonzo-Zaldivar, AP/San Francisco Chronicle, 8/21). The rule could go into effect after a 30-day public comment period and could cost more than $44 million to implement, the Post reports.

An earlier draft of the proposed regulation included language that defined abortion -- for the first time in a federal law or regulation -- as anything that interferes with a fertilized egg after conception. That language was eliminated, but supporters and opponents maintain that the proposed regulation remains broad enough to protect health care providers who decline to provide oral contraception, Plan B emergency contraception and other types of contraception. The proposed rule also would allow health care providers to decline giving patients information about such treatments or services (Washington Post, 8/22).

Leavitt said HHS "did not feel it necessary to define abortion" in the rule, adding that the regulation "relies upon existing statutes and existing court decisions as to the meaning of the word 'abortion.'" (Young, The Hill, 8/21). However, he added that some health workers might want to "press the definition" of abortion and argue that some forms of contraception are tantamount to abortion (Wall Street Journal, 8/22). "This regulation does not seek to resolve any ambiguity" in regard to health care workers who consider contraception to be equivalent to abortion, Leavitt said, adding, "It focuses on abortion and focuses on physicians' conscience in relation to that" (Washington Post, 8/22).

According to the Journal, it is unclear how many women would be affected if the regulation takes effect as it is currently written. Advocates on both sides of the debate have said hospitals, insurers and HMOs could use the regulation to challenge state laws that require insurers to cover contraceptives or require pharmacists to fill contraceptive prescriptions (Wall Street Journal, 8/22). Advocates for women's health, family planning, abortion rights and other causes maintain that the proposal could create obstacles to abortion, family planning services, end-of-life care and a broad range of scientific research (Washington Post, 8/22).

Presumptive Democratic nominee Sen. Barack Obama (Ill.) signed a letter opposing an earlier draft of the regulation, and the Journal reports that Obama would reverse the regulation if he is elected. Presumptive Republican nominee Sen. John McCain (Ariz.) has not indicated his position on the proposal (Simon, Wall Street Journal, 8/22).