Proposed HHS Regulation Could Still Block Access to Contraception, Other Health Services

HHS has released
its proposed regulation to “help protect health care providers from
[religious] discrimination.” The good news is it no longer attempts to re-define abortion to include birth control. But don’t breathe a sigh of relief just yet. The regulation
no longer defines pregnancy or abortion at all. But Sec. Mike Leavitt
indicated in the press conference that individuals might be able to
define those terms for themselves in determining what they find morally
objectionable, which means they still may be able to deny women access
to oral contraceptives, emergency contraception, and the IUD, among
other commonly used methods of birth control.

And that’s just the beginning.

While most of the regulation limits the scope of allowable moral
objections to training, performing, counseling, or referring for
abortion and sterilization, some sections are not so restricted.

Entities to whom this subsection 88.4(d) applies shall
not require any individual to perform or assist in the performance of
any part of a health service program or research activity funded by the Department if such service or activity would be contrary to his religious beliefs or moral convictions.

That seems to be an exception you could drive a truck through.

Also note the objections can be based not only on religious beliefs
but on any personal moral convictions. This is much broader than the
traditional conscience clauses, including those that allowed for
conscientious objectors during the Vietnam War.

Finally, the proposed regulation would extend protection from
doctors and nurses to just about anyone who might come into contact
with a patient, and even some who might not.

[A]n employee whose task it is to clean the instruments
used in a particular procedure would be considered to assist in the
performance of the particular procedure.

By that logic, an ambulance driver, a receptionist, and even the
person who processes health insurance forms might be able to refuse to
perform their jobs if related to a health care service they find
morally objectionable. Volunteers are explicitly protected too.

The public may submit comments on the regulation during the next 30 days to or via email to

This post was first published at ThinkProgress.

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  • invalid-0

    Thanks Jessica for your thoughtful analysis of these regulations. Although they have diluted the language found in the draft regulations, the resulting ambiguity places more power into the providers and even less into the hands of the patient. We have slipped into a dialogue around this issue using words such as “conscience” and “moral objections”, reminiscent of the “pro-life” and “anti-life” framing of the abortion argument.

    We need to be careful not to frame this discussion around conscience and morality, this is about refusing to provide certain services based on emotion, with little to no regard for protecting the health needs and rights of the patient. We need to ensure that those who refuse to provide certain services do not recieve the jobs that will endanger these patients by their refusal, that is the moral and conscientious thing to do!

    I am so happy to read your blogs and I hope you continue to use this site to provide interesting and important analyses of these and other issues affecting the health and rights of not only women but their families and communities.

  • invalid-0

    I got pregnant when I was 17, had my son when I was eighteen. So if a doctor found teenage pregnancy morally objectionable then I would have had to give birth alone at home?
    I ahd complications tha talmost killed me, they could have refused to drive me, bleeding to death, to the hospital?