Conscience Protection Regulations
Background: On December 18, 2008, the Department of Health and Human Services (HHS) issued a final regulation protecting conscience rights. See HHS press release at: www.hhs.gov/news/press/2008pres/12/20081218a.html. On December 19, 2008, the regulation was formally published in the Federal Register (Vol. 73, No. 245, 78072-78101) See: edocket.access.gpo.gov/2008/pdf/E8-30134.pdf. The regulation took effect 30 days after this publication date. The regulation does not expand conscience rights but faithfully implements three existing federal conscience protection laws. The regulation has nothing to do with withholding information about medical conditions and procedures, but is about coerced participation (performance and/or referrals) in procedures such as abortion. The regulation respects different views on abortion; it allows both patients and medical professionals to act according to their conscience. The regulation maximizes access to health care; without respect for conscience rights, many doctors, nurses, and hospitals could be forced out of the health care system. Catholic hospitals alone care for 1 in 6 patients in the U.S. every year. USCCB spokesperson, Deirdre McQuade, expressed thanks to HHS Secretary Leavitt for issuing this regulation, and added: “We urge the incoming Congress and Administration to honor this much-needed implementation of longstanding laws.” See: “Bishops Welcome HHS Regulation Protecting Conscience Rights in Health Care,” at: www.usccb.org/comm/archives/2008/08-203.shtml.
In September 2008 the USCCB Office of General Counsel had filed formal comments strongly supporting the regulation. See: www.usccb.org/ogc/pl-hhs-conscience2.pdf.
In his January 16, 2008 letter to then President-elect Barack Obama, Cardinal Francis George, president of the U.S. Conference of Catholic Bishops, pressed arguments for retaining the conscience regulation. See: www.usccb.org/comm/archives/2009/09-018.shtml.
Congress: Some members of Congress announced plans to rescind the Bush Administration regulations by legislative action. On January 15, 2009, Rep. Diana DeGette (D-CO) introduced the Protecting Patients and Health Care Act (H.R. 570), a measure that declares the Bush Administration regulations “shall have no force or effect.” H.R. 570 has 25 cosponsors and was referred the Committee on Energy and Commerce. Bills with similar intent were introduced late in 2008 in both House and Senate (S. 20, H.R. 7310).
Judicial: On January 15, 2009, three federal law suits were filed in the District of Connecticut against the Bush Administration regulation by pro-abortion organizations and the attorneys general of six states (CT, joined by IL, CA, NJ, MA, RI, and OR), with the help of the American Civil Liberties Union. Planned Parenthood v. Leavitt; National Family and Reproductive Health Association (NFPRHA), et. al. v. Leavitt; Connecticut v. the United States. These suits claim that the regulation invalidly expands the scope of the statutes it implements; they also make constitutional arguments, including the claim that by protecting conscience rights for health care providers the regulation offers an unconstitutional “establishment of religion.” For background on these three cases, see: www.clsnet.org/clrfPages/litigation/litigation_Overview.phpx.
Obama Administration: On March 6, 2009, the Obama Administration issued a proposed rule to rescind the December 19, 2008 Bush Administration final regulation entitled “Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law.” According to the proposed rule, it is important “to review this [2008] regulation to ensure its consistency with current Administration policy and to reevaluate the necessity” for regulations to implement existing conscience protection laws.
Four particular areas for comments were listed: (1) information, with examples, on the need for regulations; (2) information, with examples, on whether the December regulation reduces access to information and health care services, particularly for poor women; (3) comments on whether the December regulation is sufficiently clear to minimize the potential for harm resulting from any ambiguity and confusion caused by the regulation; and (4) comments on whether the goals of the December regulation might also be accomplished through non-regulatory means, such as outreach and education.
The proposed rule on the rescission was formally published in the Federal Register, Vol. 74, No. 45 (March 10, 2009), 10207-11. For a copy, see: www.gpo.gov/fdsys/pkg/FR-2009-03-10/pdf/E9-5067.pdf. The public had 30 days to comment. The comment period ended April 9, 2009.
On March 10, 2009, 36 Senators sent a letter to President Obama, urging him to preserve the current conscience protection rule. Health care professionals have the right to provide care based on “medical expertise and ethical standards.” Protecting these rights will serve the best interests of patients. See: www.nchla.org/datasource/idocuments/Sn.Con.Let3.10.09.pdf. On April 3, 2009, 120 Representatives also sent a letter to the president in support of the conscience rule. See: www.nchla.org/datasource/idocuments/HouseConscienceLetter040309.pdf.
On March 23, 2009, the U.S. Conference of Catholic Bishops’ Office of General Counsel submitted well-argued, incisive comments on the rescission proposal. The comments are organized around five themes: (1) the policy of the executive branch should be to satisfy its constitutional obligation to faithfully executive federal conscience protection laws; (2) in the present environment, there is a critical need for regulatory enforcement of the conscience protection statutes enacted by Congress; (3) considerations of access to health care services, particularly for the poor, militate in favor of keeping the conscience regulation, not rescinding it; (4) the existing regulation only reduces ambiguity and confusion regarding existing statutory protections of conscience; (5) the administration should consider outreach that is designed to dispel common misconceptions about the existing constitutional, statutory, and regulatory law in this area, and should certainly avoid feeding those misconceptions itself. The conclusion states: “It is the Administration’s constitutional duty to enforce the laws enacted by Congress, including conscience protection statutes at issue here. Congress has made its policy choice—a choice that respects and advances this Nation’s founding principles of religious liberty and diversity, and that tends to increase patients’ ready access to basic health care, regardless of their location or socio-economic status. The Administration’s regulatory actions should faithfully enforce that existing policy choice.” For the full text of this excellent document, see: www.usccb.org/conscienceprotection/hhs_comments_conscience_09final.pdf.
Also, see the well-written presentation in popular Q & A format, “Questions and Answers: Defending the Conscience Rights Regulation,” at: www.usccb.org/conscienceprotection/q_and_a.shtml.
A March 23-25, 2009 public opinion poll showed that 87 percent of those surveyed believe it is important to “make sure that healthcare professionals in America are not forced to participate in procedures and practices to which they have moral objections.” See: www.usccb.org/comm/archives/2009/09-077.shtml.
For resources and background information, see: www.usccb.org/conscienceprotection. | |
