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Health and Human Services Secretary Michael Leavitt said he felt compelled to issue the new rules after what he called an unsatisfactory exchange last year with groups representing obstetricians and gynecologists over new ethics guidelines.
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Health care workers, hospitals and even entire insurance companies could decline to perform, refer or pay for abortion or any other health care practice that violates a "religious belief or moral conviction" under new rules issued by the outgoing Bush administration.
"This rule protects the right of medical providers to care for their patients in accord with their conscience," said Health and Human Services Secretary Michael Leavitt.
But opponents of the rule, now set to take effect Jan. 19, say it could threaten patients' health. "This is a very wide, broadly written regulation that upsets what has been a carefully established balance between respecting the religious views of providers, while also making sure that we're guaranteeing patients access to health care," said Cecile Richards, president of the Planned Parenthood Federation of America.
For example, Richards said, many states currently have laws requiring that rape victims treated in hospital emergency rooms be offered the option of taking emergency contraceptive pills to prevent pregnancy. But she said that because providers who don't believe in emergency contraception could now simply opt not to tell women about that option, "under this rule, we believe that in fact now women who are the victim of sexual assault either would not be guaranteed either information or health care access to emergency contraception."
That slap at state laws spurred opposition from more than a dozen state attorneys general when the regulations were first proposed. Connecticut Attorney General Richard Blumenthal says he'll fight to see the new rule rescinded.
"This rule is an appalling insult and abuse — a midnight power grab to deny access to health care services and information, including even to victims of rape," Blumenthal said.
But Leavitt said he felt compelled to issue the new rules after what he termed an unsatisfactory exchange last year with the organizations that represent the nation's obstetricians and gynecologists over a new set of ethics guidelines.
"It came about primarily because some of the professional association were trying to define as competence a willingness to perform abortion. And I think that's wrong," Leavitt said in September. "A person can be perfectly competent and feel it's not morally correct to perform an abortion. And they ought to have the capacity to be protected in that right."
That ethics policy, however, from the American College of Obstetricians and Gynecologists, had less to do with whether doctors should be willing to perform abortions or other potentially controversial services, and more to do with what they should do if they were unwilling to perform them. In those cases, according to the policy, doctors should tell patients upfront and refer them to someone who is willing to provide the services.
Under the new regulations, however, such referrals will not be required. That pleases groups like the Family Research Council. "What these conscience regulations do is let the individual decide what their conscience is, and not the federal government, be it Barack Obama or George Bush," said Tom McClusky, the group's vice president of government affairs.
But Barack Obama made it clear during the presidential campaign that he disapproved of the rules. The president-elect said an early version of the regulations "raises troubling issues about access to basic health care for women, particularly access to contraceptives."
While the incoming president can't simply wipe out the rules with the stroke of a pen, there is a relatively abbreviated process for taking them off the books. It's called the Congressional Review Act. And because the Bush administration issued the regulation late in the current president's term, the new Congress will have 75 legislative days to pass a "motion of disapproval." All it takes is a simple majority of votes by the House and Senate, and the motion is not subject to delaying tactics in the Senate.