September 25, 2008

Department of Health and Human Services

Office of Public Health and Science

Attn: Brenda Destro

Hubert Humphrey Building

200 Independence Avenue SW

Room 728E

Washington, DC 20201

Re: RIN 0991-AB48

Dear Secretary Leavitt,

We are writing in strong opposition to a draft regulation proposed by the Department of Health and Human Services on August 26, 2008 that has the potential to hinder women¡¯s access to birth control and other reproductive-health services.  It claims to enforce laws already on the books that allow doctors and other health-care professionals to opt out of providing certain health-care services.  NARAL Pro-Choice America does not oppose an individual right of conscience, but this regulation goes much further than providing individuals with a right to refuse to provide services that they oppose; in actuality, it would seriously jeopardize patients¡¯ rights to receive quality, comprehensive health-care services.

The following provides background on the issue and an analysis of the very serious problems that the draft regulation, if implemented, may cause.  For the reasons detailed below, we strongly urge you to halt all efforts to move this proposed regulation forward.

BACKGROUND ON REFUSAL PROVISIONS ALREADY MAINTAINED IN LAW

Several existing laws allow health-care providers ¨C including individuals and health-care corporations ¨C the right to opt out of providing certain services that they oppose on moral or religious grounds.  The key laws include:

The Church Amendment[1]

The Church amendment, enacted in 1973, states that no individual or health-care entity may be required to provide or assist in the provision of abortion or sterilization services.  In 1974, the statute was amended to include broad language stating that no individual may be required to perform or assist in performing any health-care service or research activity funded by the Department of Health and Human Services.

The Public Health Service Act[2]

In 1996, the Public Health Service Act was amended to prohibit the federal government and any state or local government from ¡°discriminating¡± against certain health-care entities on the basis that an entity refuses to receive or provide abortion training, provide abortion care or abortion referrals, or provide referrals for abortion training.  In essence, it grants individual employees the right to refuse to provide, train for, or refer for abortion services, and offers certain health-care entities ¨C specifically, postgraduate physician training programs ¨C the right to refuse to participate in these activities.

The Federal Refusal Clause (Weldon Amendment)[3]

Enacted in 2005, the Federal Refusal Clause prohibits federal, state, and local government from ¡°discriminating¡± against a health©\care entity that ¡°does not provide, pay for, provide coverage of, or refer for abortions.¡±  It defines a health-care entity as:  ¡°an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.¡±  In other words, it grants a broad variety of health-care entities the right to refuse to provide or refer for abortions.

In summary, the Church amendment allows individuals to refuse to provide health-care services or participate in research activities, and gives health-care entities the right to refuse to provide abortion or sterilization services; the Public Health Service Act extends individuals and certain health-care entities (postgraduate physician training programs) rights to refuse to provide referrals for abortion services; and the Federal Refusal Clause allows entire health-care corporations to refuse to provide, cover, or refer for abortion services

The Proposed Regulation

The new Bush administration regulation purports to encourage enforcement of, and education about, the existing laws described above.  If that were so, the draft regulation would not be groundbreaking, necessarily.  But in fact, the regulation pushes the bounds of current law and introduces several very serious problems:

¡¤         It jeopardizes women¡¯s access to birth control by leaving open the possibility that providers will be able to define contraception as abortion; if they are allowed to do so, the conscience protections pertaining to abortion could thereby be expanded to pertain to birth control. 

¡¤         It expands the universe of individuals and institutions that are explicitly afforded refusal rights.  It offers broad rights to employees who are only tangentially involved in providing the services at issue (for example, receptionists scheduling appointments), and it has the potential to grant entire health-care corporations (hospitals, HMOs, insurance companies) the same ¡°conscience¡± rights as those offered to individuals.

¡¤         It allows individuals to refuse to give referrals and information about a broad range of services.  Current law allows individuals the right to refuse to refer or counsel patients for abortion services, but the draft regulation could allow individuals to refuse to provide referrals and information about any health-care services.  This could affect reproductive-health services and many other health-care services beyond.

¡¤         It fails to take into consideration laws that protect patients¡¯ rights to services and information, potentially limiting patients¡¯ abilities to make informed decisions about their own health-care needs and to access legal health-care services.

Examples of HARM THE REGULATION COULD CAUSE

It Jeopardizes Women¡¯s Access to Birth Control

The regulation itself, and the Bush administration¡¯s discussion of it, seem deliberately calculated to confuse the definitions of birth control and abortion.  First, an earlier, leaked version of the regulation defined abortion to include birth control explicitly.  While the newer version no longer includes this definition, it fails to provide any definition of abortion.  Making matters worse, when the Department of Health and Human Services was asked to clarify that the regulation does not apply to birth control, the response was: ¡°This regulation does not seek to resolve any ambiguity in that area."  For these reasons, the regulation offers no assurance that current laws about abortion ¨C including those which grant entire health-care corporations the right to refuse to provide or refer for abortion services ¨C will not be stretched to include birth control.  In other words, the regulation¡¯s deliberate vagueness may grant providers the right to refuse to provide birth control under the guise of refusing to provide abortion services. 

Defining abortion to include birth control conflicts with long-standing federal regulations defining when pregnancy begins, which could cause a series of problematical effects in law and policy.  Doing so also interferes with many state and federal laws that guarantee women¡¯s access to and information about contraception:

• If providers are allowed to consider birth control abortion, this could undermine laws in 27 states that require insurance plans that cover other prescription drugs also to cover birth control (known as contraceptive-equity laws).[4] 
• It could threaten laws in 14 states that guarantee sexual-assault survivors' access to and/or information about emergency contraception in hospitals.[5]
• It could directly undermine laws in six states ensuring that pharmacies will fill women¡¯s birth control prescriptions.[6]
• Finally, it appears to stand in open conflict with at least two federal programs that require contraceptive services to be provided to clients upon request: Medicaid and Title X.  The Medicaid program includes birth control as a mandated benefit for patients.  Title X is a program whose sole purpose is to provide family planning and other related reproductive-health services.  This regulation could throw both programs into chaos by telling both individual program staff and health-care institutions that, in spite of the programs¡¯ guarantees, they may refuse to provide birth control after all.

It Extends Refusal Rights to a Broad Array of Individuals and Institutions

In addition, the proposed rule expands the universe of health-care individuals and institutions that may refuse to provide services:

• It explicitly extends individual refusal rights to staff who are only tangentially involved in the service or activity that they oppose, such as receptionists who schedule appointments. 
• Nothing in the regulation protects against the possibility that entire health-care corporations ¨C such as hospitals, HMOs, and insurance companies ¨C could ultimately claim the same ¡°conscience¡± rights as individuals.  Current law offers individuals the right to choose not to provide services to which they object, and allows certain health-care entities the right to opt out of providing or referring for abortion.  However, the proposed regulation leaves open the possibility that, for example, a director of a health-care institution ¨C such as a hospital, HMO or health insurance plan ¨C could claim "conscientious objection" to a health-care service and then claim that his or her role facilitates the provision of these services.  As such, it is possible that he or she could exempt the entire corporation from providing these services. 

It Allows Providers to Refuse to Provide Referrals and Information about a Broad Range of Health-Care Services

The Church amendment uses language offering individuals who ¡°assist in the performance¡± of a health-care activity that they oppose the right to refuse to participate in this activity; however, it does not define the phrase ¡°assist in the performance,¡± leaving open to interpretation the scope of the phrase.  The draft regulation explicitly extends ¡°assist in the performance¡± to include referrals and information about services.  Therefore, because the Church amendment allows individuals the right to refuse to assist in performing any health-care service that they oppose, the draft regulation could allow individuals to refuse to provide referrals or information about any service that they oppose. 

So, in addition to threatening birth control, the proposed rule could make it more difficult for patients to receive information about a broad spectrum of reproductive-health services and other health-care services.  For example, the proposed regulation may encourage a physician or physician¡¯s assistant to deny a patient information about the cervical cancer vaccine because the individual opposes sexual activity outside of marriage.  It could also potentially encourage providers to refuse to offer information about end-of-life pain management services; fertilization services for gay and lesbian patients; or HIV/AIDS treatment.  Patients who are denied referrals for services often do not know that information has been withheld, and may not have any way of knowing that the services that were not discussed may be viable, legal health-care options for them. 

It Threatens to Upend the Balance Current Laws Strike Between Patient and Provider Rights

Finally, the proposed regulation fails even to mention current laws ¨C principally, Title VII of the Civil Rights Act of 1964 ¨C that protect patients¡¯ rights to information and services, and that offer guidance on the balance between providers¡¯ rights and patients¡¯ rights.  Under Title VII, employers have a duty to make a reasonable accommodation for an employee or applicant¡¯s religious beliefs or practices, unless doing so places an ¡°undue hardship¡± on the employer¡¯s business.[7]  This law provides protection for individual beliefs while still ensuring patients¡¯ access to health-care services.  However, the proposed regulation fails entirely to discuss how the expansive new refusal rights it offers will affect the needs of patients, nor does it outline whether there are any circumstances at all when the needs of the employer or its clients should be taken into account.

In this respect, the proposed rule raises serious questions as to whether its purpose is to upset the careful balance between respecting employee¡¯s religious beliefs and protecting patients¡¯ access to health care currently maintained in federal law.  

For all of the reasons described above, we strongly urge you to halt all action in moving this proposed regulation forward.

Sincerely,

NARAL Pro-Choice America

cc:  President George W. Bush