The Bush administration this week received tens of thousands of comments on a controversial rule that demonstrates that even in its waning days, the administration continues to have a major impact on policy.
Bush officials say the rule is intended to protect health care providers with moral objections from having to perform abortions. But critics, who include not just women's rights groups but groups representing doctors and 13 state attorneys general, warn it could jeopardize women's access to all types of medical care, including basic birth control.
Health and Human Services Secretary Mike Leavitt says he was moved to issue the rule by stories of discrimination against providers who refuse to do abortions. Sandy Christiansen is one such doctor. An obstetrician-gynecologist from Frederick, Md., Christiansen says she was discriminated against during her training in Philadelphia in the late 1990s; for religious reasons, she had declined to perform elective abortions.
"I noticed that one of my fellow interns was frequently getting the privilege of scrubbing in on gynecologic cases, and I asked my chief resident — said I was interested myself," Christiansen said. "And she said, 'Well, your colleague has been working hard doing the abortions, and earned this privilege, whereas you refused to do this, and so you don't get the perk.' "
Christiansen says she didn't seek recourse at the time, but "now I realize I really missed learning opportunities simply because of my values."
Today Christiansen works in a clinic for pregnant women that neither performs nor refers patients for abortions. She says she's glad that the new rule not only ensures that doctors, nurses and even entire hospitals can't be discriminated against for not providing care that violates their religious beliefs but that it also gives them the right not to refer patients to other health care providers who will offer that care.
"Those of us who would not refer for procedures we would not do ourselves would not ask another person to do that, for the exact same reason," Christiansen says.
In fact, laws dating back to the early 1970s already protect doctors and nurses from being required to participate in abortions if it violates their religious beliefs. Leavitt says he felt moved to add to those laws with this new regulation after an "unsatisfactory" exchange with the American College of Obstetricians and Gynecologists.
The group issued an ethics policy last year that called on its members to either provide the full range of reproductive health care or else refer patients to other providers who would.
But opponents of the rule worry that the new regulation is written so broadly that it covers far more than abortion. Democratic Sens. Hillary Clinton of New York and Patty Murray of Washington expressed their concerns to Leavitt in a meeting in the Capitol this past week.
"He has a clear idea that he wants to provide support to providers who do not wish to participate in or perform abortions, but we pointed out that the regulation can be read as going much further than that; and I'm particularly concerned about contraception," Clinton said after the meeting.
Indeed, many groups, including the 13 state attorneys general, are worried the regulation could override state laws requiring victims of sexual assault be offered emergency contraception — the so-called morning-after pill. It can prevent pregnancy in most cases if taken within 72 hours after unprotected intercourse. Since the pill can work by preventing a fertilized egg from implanting in the uterus, some people consider that a type of abortion.
But the same can be true of other forms of birth control pills. And Cecile Richards, president of the Planned Parenthood Federation of America, says it's not just birth control and abortion at issue but any potentially controversial medical technique or drug.
"If every pharmacist in this country decided what they were and weren't going to dispense, to anyone who walked in, this kind of goes on forever," says Richards.
Leavitt, however, said after his meeting with Clinton and Murray that he decided to keep the regulation vague on purpose.
"I chose deliberately in the proposed rule not to try and redefine things differently than they are in the statute," said Leavitt.
"I want this to be about protecting the right of a doctor or a nurse who is being asked to perform a procedure that they find morally objectionable."
Leavitt says he plans to make the rule final before he leaves office. Democratic presidential candidate Barack Obama says he'll cancel it if he's elected. Republican candidate John McCain has so far declined to say what he'll do.