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Obama and the Bush Conscience Regulations


Take Action [1]
Most are aware that the Obama administration has taken aim at conscience regulations passed in the waning days of the Bush administration protecting health care workers from participating in abortions and sterilizations.  Some however might be confused as to the precise nature of the new administration’s initiative.  I want to clarify the salient points of that initiative and invite everyone who reads this brief to contact the White House and urge it to defend and not weaken conscience laws in the U.S.

Implementing existing conscience laws

On December 19, 2008, the Bush administration enacted long overdue federal regulations for guiding the implementation and enforcement of laws protecting rights of conscience in health care.  The Bush administration passed no new law protecting the consciences of health care workers.  It merely enacted a set of regulations intending to implement existing conscience statutes—laws that have been on the books for the past forty years.  Those laws include (1) the Church Amendments enacted at various times throughout the 1970s; (2) the Public Health Service Act enacted in 1996; and (3) the Weldon Amendment adopted as part of the 2005 Health and Human Services (HHS) Appropriations Act and readopted each year since, including 2009.  Together these laws — collectively referred to as the “federal health care conscience protection statutes”— protect individuals and institutions against reprisal from refusing to participate in abortions or sterilizations if such participation is contrary to religious belief or moral conviction.  They prohibit any entity receiving federal funds (e.g., hospitals, medical schools, internship facilities, medical clinics) from discriminating (in admissions, hiring, or promotions) against health care workers or applicants who refuse on moral or religious grounds from participating in these activities.  And they prohibit agencies of the Federal, State and local government from discriminating against any health care entity on the basis that the entity refuses to participate in abortions (perform them, undergo training in their performance, require or provide such training, provide referrals for such training or performance, pay for, or provide coverage for abortions). [1]

A growing environment of intolerance in the health care field
With such an expansive set of legal protections for health care workers, why did the Bush administration feel it necessary to enact new regulations?  This question is at the heart of the present controversy.
The Department of HHS under George W. Bush received multiple complaints over several years from around the U.S. that notwithstanding these laws on the books, individuals and institutions were routinely being coerced to participate in abortions.  When HHS initiated an investigation, it found considerable hostility towards conscience rights by advocacy groups and professional organizations such as the American College of Obstetricians and Gynecologists, the ACLU, NARAL Pro-Choice America and Physicians for Reproductive Choice.  When it sought public input on the proposed regulations it received numerous comments reporting instances of discrimination due to the assertion of the right to conscientiously object, “including health care providers suffering loss of employment, adverse actions during medical training, and discrimination in residency placement” (Regulations, p. 28).  Numerous other comments, including from health care professionals, illustrated “serious misunderstandings regarding statutory health care provider conscience protections, or … expressed a narrower view of the scope of these protections than is consistent with the Department’s interpretation” (Regulations, p. 49).  It even found instances where State and local government agencies were threatening coercive action against health care workers and institutions who refused to provide abortions.
The Department’s inquiry uncovered “an environment in sectors of the health care field that is intolerant of individual objections to abortion;” this environment “isolates and excludes some among various religious, cultural, and/or ethnic groups from participating in the delivery of health care.”  The Department became convinced that “in the absence of a clear statement of responsibilities, there is a serious risk that…these conscience rights will not be fully protected” (Regulations, p. 8).

What concrete steps do the Bush regulations take to implement the existing law?
The Bush administration’s regulations do three things.  First, they define key terms in existing conscience statutes to ensure that the laws will be applied consistent with Congress’s intent.  For example, the Church Amendments use the term “assist in the performance” when establishing protections against being coerced to assist in the performance of procedures such as abortion.  Pro-choice advocates wanted the term to be construed as including only activities directly involved with a procedure (e.g. with abortion, actually aborting the baby, or prepping the women, or operating the vacuum machine).  The regulations state matter of factly that this narrow definition “falls short of implementing the protections Congress intended under federal law” (p. 15).  To counter such a faulty interpretation, the regulations define “assist in the performance” as including “any activity with a reasonable connection to a procedure, health service or health service program, or research activity.”  With regard to other select terms (“individual,” “health care entity,” “health service,” “recipient”), the regulations provide balanced and non-ideological definitions in conformity with what they take to be Congress’ intent.  Second, the regulations require that certain recipients of federal funding certify their intent to comply with existing conscience laws.  And finally, the regulations specify the offices of HHS responsible for handing complaints against the existing laws.

The regulations state clearly that the intent of HHS is not to challenge legal abortion in the U.S., but simply to address the problem of non-compliance with existing laws.

Rescinding the Bush regulations
In March 2009, the Department of HHS of the Obama administration published a document proposing to rescind the December 2008 Bush conscience regulations [2].  The rescission document has four complaints against the Bush regulations: [3]

1.    It doubts there is any need for the regulations in the first place, i.e., that there is a problem with conscience violation in U.S. health care.
2.    It fears the regulations will reduce access to abortions, especially for low-income women.
3.    It fears that the regulations may cause harm by increasing ambiguity and confusion.
4.    It believes that the goals of the Bush regulations can be accomplished through non-regulatory means, such as “outreach and education”. [4]

Why are the Bush regulations a threat to the Obama administration?

At face value the Obama administration’s four concerns appear slight; they do not seem to warrant wholesale cancellation of the Bush administration’s regulations. On closer inspection, they reveal themselves for what they are: ideological obfuscations—sand thrown in the eyes—to distract the unobservant from an increasing problem that abortion proponents both defend and perpetuate.  If the Obama administration is sincere about upholding laws defending both abortion and conscientious objection to abortion, why should the Bush regulations be problematic?  They pose no juridical threat to legal abortion, impose no new restrictions on its legal performance, impose no arbitrary burdens on any group the members of which might seek an abortion, propose no moral judgment whatsoever explicit or implicit about the morality of abortion, and even back off from defining certain controversial terms in deference to the still ongoing public controversy over abortion [5].  In fact, they not only clarify civil duties under law to protect those who conscientiously object from participating in abortion, their clarifications and protections extend as well to those who choose to participate legally in it.  The only restrictions they impose are on agencies, institutions and individuals who would illegally and unethically coerce others to engage in actions they judge to be evil.

Is it reasonable to conclude that the Obama administration’s proposal to rescind regulations implementing conscience laws for health care workers is motivated by a fundamental antipathy to the rights those regulations were enacted to ensure?

Take action [1]
For those who did not send comments to HHS on the Obama Rescission Proposal during the four week open window, there is still time to contact the President and urge him not to rescind the regulations enacted on December 19, 2008.  A very fine website has been set up called Freedom2care.org (www.freedom2care.org [1] /) which will walk you through the steps needed to send a message to the White House.
Please consider doing so, especially if you are a health care professional.

[1] The HHS enactment of December 2008, entitled Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, can be accessed at www.freedom2care.org/docLib/20090313_HHS_20081218_reg_FINAL.pdf  [2]

[2] See the Obama administration document, Rescission of the 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, available at  http://www.freedom2care.org/docLib/20090313_HHS_rescission_notice.pdf [3]

[3] The Department of HHS initiated a four-week period for public comment on its proposal; the period ended on April 9th (Holy Thursday).

[4] The most persuasive and extensive reply to the four objections of which I’m aware is provided by the Office of the General Counsel of the United States Catholic Conference, March 23, 2009, pp. 6-14; available at http://nchla.org/datasource/idocuments/copy_hhs_comments_conscience_09final.pdf [4]

[5] The first draft of the Bush regulations defined human life as beginning at fertilization and abortion as ending a human life.  Unfortunately, the outcry against these definitions led to their being dropped from the text.  Abortion proponents wanted life defined as beginning at pregnancy, pregnancy defined as beginning at implantation, and abortion defined as the termination of a pregnancy.