There are many reasons to oppose the new Health and Human Services regulations that would expand provider conscience protections. The new regulations would enable providers not only to refuse to supply but refuse to refer patients for procedures or services the providers opposed, including contraception, abortion, and sexual health care services. They give wide berth to providers’ consciences but neglect totally the conscience of the individual seeking care.
But the new regulations can be opposed on administrative grounds, too. In May 2008, White House Chief of Staff Joshua Bolten issued a memorandum intending to prevent "midnight policymaking." Bolten directed all heads of executive departments and agencies to submit all proposed regulations before June 1, 2008, in order to “resist the historical tendency of administrations to increase regulatory activity in their final months.” The Institute for Policy Integrity (IPI) recently wrote, "We believe this deadline represented sound policymaking procedure by creating a sufficient window for the vetting and review of new rules and discouraging ‘last-minute’ policymaking." The HHS regulations, proposed in August, fell afoul of Bolten’s directive.
IPI asked the Office of Management and Budget and the Office of Information and Regulatory Affairs how the new regulations could square with Bolten’s memo, citing concerns over an inaccurate cost-benefit analysis (which they wrote about for RH Reality Check) and an inadequate review period. Richard L. Revesz, dean of the NYU Law School, and Michael Livermore, executive director of IPI, wrote,
These proposed regulations are in clear violation of the White House directive and the Administration’s expressed commitment to principled regulation. The Institute strongly urges OMB to comply with and enforce that policy – either by requiring these federal agencies to explain why these regulations are proposed under “extraordinary ircumstances,” or, if agencies cannot make this showing, by preventing these agencies from promulgating these rules.
Susan Dudley, administrator of the Office of Information and Regulatory Affairs, responded: “[T]he [Bolten] Memorandum was not intended to be a moratorium on proposed regulations…It further contemplates some circumstances in which it would be appropriate for individual regulations to proceed without regard to deadlines if approved by OIRA, working closely with the heads of the President’s policy councils.” As IPI points out, those circumstances were meant to be extraordinary, and Dudley does not explain how the regulations at hand meet that standard.
Is the Bush administration laying the administrative groundwork for promulgating the regulations? We’ll keep a close watch in the coming weeks.