Office of Public Policy Objects to Proposed HHS Regulation
October 3, 2008
On September 25, 2008, CFI’s Office of Public Policy submitted detailed comments on a regulation proposed by the Department of Health and Human Services (HHS), the so-called Provider Conscience regulation. The proposed regulation would expand significantly the ability of health care workers to refuse to provide services because of their religious beliefs.
Under existing federal law, the federal government may refuse to fund health care institutions that “discriminate” against individuals or entities that decline to provide abortion or sterilization services. To date, these laws have had minimal impact on provision of services because they have been interpreted reasonably.
The proposed regulation, however, effectively gives health care workers an absolute and broad right to refuse to provide or participate in a service to which they object. The regulation states that it will apply to “any activity with a reasonable connection to a procedure” to which the health care worker objects. The regulation itself indicates it could cover a worker who refuses to clean surgical instruments because they may be used in an operation that offends his “conscience.” Moreover, the regulation makes no effort to balance the needs of the patient with the objections of the nurse, pharmacist, or technician. This places the regulation in stark contrast to other laws prohibiting discrimination on the basis of religion, which do not permit workers to refuse to provide services if that refusal has significant adverse consequences for others. The regulation also would impose onerous reporting and certification requirements on health care institutions—resulting in tens of millions of dollars in extra expenditures.
The proposed regulation would affect all those with health care needs, but would have an especially severe impact on women and their reproductive rights, especially in light of the recent trend by pharmacists and others to refuse provide emergency contraception based on the erroneous and scientifically unsupported belief that this means of preventing pregnancy results in an abortion. Because the regulation provides no definition of “abortion,” the “conscience” of the objecting health care worker can define it as he or she sees fit.
The comments submitted by the Office of Public Policy registered strong objections to the proposed regulation and urged the Secretary of HHS not to implement the regulation. The comments were prepared by Ruth Mitchell, Ph.D., of the Office of Public Policy, and Ronald A. Lindsay, J.D., Ph.D., President and CEO of CFI, with contributions by Derek Araujo, J.D., the Executive Director of CFI’s New York City Center, and Toni Van Pelt, Vice President and Director of Government Affairs.
To view a .pdf of the submitted comments in their entirety, click here.
