The Trench Warfare of the HHS Rules

Few reproductive rights stories caught the public’s imagination in 2008 like the conflict over the Bush administration’s attempt to rewrite HHS regulations to expand the powers of anyone working in the health industry to interfere with a woman seeking reproductive health care by claiming religious disagreement. By niftily claiming that health care workers can "believe" that hormonal birth control is abortion—which has the same scientific basis as believing unicorns are real—a wide range of health care workers can interfere with a woman’s access to birth control, as well as abortion.  The proposed rule change caught the public’s imagination in part because of the petty, vindictive nature of it.  Here is the Bush administration, openly encouraging health care workers to sit in judgment of female patients on a case-by-case basis and, should some women not suit their tastes, interfere with their health care on an individual level that would surely come across as nasty and vindictive in person.  As, I would argue, it’s meant to do.

This rule change is nothing short of overriding the wishes and expectations of the larger population to cater to a fanatical religious right.  The rule change not only reflects the values of the religious right, but also their tactics.  Unable to enact large-scale bans of contraception and abortion, anti-choicers have declared a form of trench warfare against the women of America for possession of the uteruses of America.  In real trench warfare, you "win" a "battle" by gaining a few feet of territory.  In the trench warfare of reproductive rights, anti-choicers consider a few women inconvenienced, humiliated, or even forced to become pregnant or give birth against their will a victory worth savoring.  

But for most Americans, government regulation of health care is about, well, regulation.  We want regulations to standardize health care so that we’ll get the same quality of service every time we go to the doctor or pharmacy.  "Regulations" that turn health care into a lottery — will I get good service this time, or an anti-choice vigilante interfering with me? — doesn’t even make sense to most citizens.  

Despite the opposition to the rule change and the fact that it’s almost surely going to be reversed after a pro-choice President and pro-choice Congress are sworn in, the Bush administration seems perversely determined to push this through, giving themselves an extra 30 days to sneak the new rules under the door (The rule is in the final stages of review).  It forces one to wonder what they hope to accomplish by pulling this stunt.

I theorize that it’s an attempt to galvanize the religious right after a set of demoralizing losses in 2008.  Nothing gets the right worked up like convincing themselves that they are an oppressed minority because they’re not permitted to push their religious beliefs on others using government power.  We all know the litany of battlegrounds: creationism in the science classroom, "under God" in the Pledge of Allegiance, teacher-led prayer in school, mandatory "Merry Christmas" instead of the more inclusive "Happy Holidays". And some of these battles are losing their power to motivate the religious right.  They need something new and fresh so they can continue to distract the nation from important issues like the economy, and so they can become an obstacle between the new administration and genuine progress.

These rules are tailor-made to create such an uproar.  Given a new right to hijack health care in order to harass women, the right will feel the pinch when it’s taken away, even if they only have this right for a few days.  Email lists and fliers claiming that the Obama administration has written "new" rules oppressing fundamentalist Christians will proliferate.  

Marilyn Keefe, the Director of Reproductive Health Programs at the National Partnership for Women and Families, explained two ways that the new HHS rules could be returned to their prior state if the Bush administration does pass them.  Obama could suspend the rule when he enters office, and, after a period of public notice and comment, rescind the rule completely.  Alternatively, Congress could repeal the rule by either introducing a bill to do it, or putting the repeal in another bill.  

Both strategies have drawbacks.  The congressional strategy requires building a coalition on what will be reported as an abortion bill, which is usually a bad bet.  But if the right is gearing up to play the "poor oppressed fundamentalists" card, then there’s a specific danger in Obama’s administration repealing the rule, which will encourage the religious right, already rife with conspiracy theories about Obama being everything from a secret Muslim to the Anti-Christ, to focus their attention 100% on crippling the Obama presidency.  At least with the congressional pathway, the responsibility and therefore the right wing attention is diffused.

That said, using this as a new strategy to work people into a frenzy over the poor, oppressed Christians could very likely backfire.  Successful campaigns are those that court the sympathies of Christian-identified Americans who may not be devout or fundamentalist.  You need issues that nod to a general Christian dominance without having any consequences that will disturb the everyday life of more moderate Christians.  Prayer in schools and "Merry Christmas" includes them.  Many fail to empathize with those who are hurt by a ban on same-sex marriage.  But if you interfere with their ability to access contraception, they will resist you.  Without these moderates on hand, the religious right will find their ability to generate outrage to be sorely limited.   

Don’t forget to join Marilyn Keefe, mentioned in the article, and others on RH Reality Check, for a live discussion on the future of reproductive health and rights. Join us and ask your questions!

Like this story? Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

For more information or to schedule an interview with contact

Follow Amanda Marcotte on twitter: @amandamarcotte

  • erin-kate-ryan

    Hi Amanda,


    Thanks so much for this piece. I do think it’s also important that we note which American women will be hurt by this regulation. Abortion will never be out of reach of wealthy women in this country, regardless of their own political beliefs. Regulations like this one–and like nearly all restrictive measures on abortion–have the greatest impact on poor women, very young women, certain immigrant women, and women who already face significant obstacles in accessing abortion services. It’s poor women who may not have the resources to seek out other providers when turned away. It’s poor women who may not be able to take another day (or more, depending on mandated waiting periods) off of work, or who cannot afford gas or bus fare or childcare to seek health care elsewhere. It’s poor women who may be turned away from the only provider who accepts public health plans in states where abortion is covered. Women seeking second-trimester abortions may not have the time to locate another second-trimester provider within a practical distance.


    When we talk about government asserting control over the reproductive decisions of women–regardless of the motivations–we must not forget that the woman most affected are–and always have been–young women, poor women, women of color, immigrant women, native women, and women in prison. That middle class moderates seeking their contraception–that is, those with the resources to locate other providers–are the people with the power to resist these regulations is ironic, although hardly surprising.

  • invalid-0

    Let us not forget that this rule only “protects” some consciences. Slate has a great article up about health care workers being forced by law to give a mandatory speech on falesehoods to women seeking to terminate even if it goes agains their conscience!

    Why do we protect the moral convictions of only some health care workers?
    An excerpt:

    Reading the new HHS regulations together with the mandatory South Dakota “script,” one can conclude only that those same health providers who cannot legally be compelled to perform, assist in, or clean tools for an abortion may nevertheless be compelled by law to deliver misinformation about it. The freedom and autonomy of doctors who oppose abortion are to be protected. But those willing to provide abortions can be forced to deliver a state message with which they completely disagree. Something tells me that one’s freedom and autonomy shouldn’t generally depend upon one’s moral or religious preferences.

  • amanda-marcotte

    I think that bothers me the most of all.  Mandatory speeches are promoted as "informed consent", but they’re anything but.  They usually are rife with misinformation, and are an attempt to trick women out of their choice.  I suspect they pretty much never work, as well.

  • emma

    Personally, I think Christian fundamentalists *should* be oppressed. Perhaps sent to re-education camps? We need to send a message that their theocratic beliefs are not acceptable to express in public. These people are a danger to the democratic process, to science and to women throughout the world.


    (I’m only half kidding here.)

  • invalid-0

    I hope you’re kidding, because you would be engaging in the tatics that you decry.

  • emma

    Mostly kidding, yeah. I *do* think they should be prevented from co-opting the political process and legislating their religious beliefs, though.

  • invalid-0

    We linked to this in a post at the CA NOW blog, “Reproductive Health News and Actions”

  • invalid-0

    This is a clear violation of the separation of the church and state rule. I don’t know what Bush was thinking when he pushed for this bill. It reeks of religious fanaticism that kinda reminds us of extremists who think they can rule over the lives of others by waving their religion in everybody’s face.

    Thank goodness Bush’s term is over , hopefully harmful and malicious policies like these will be minimized even eliminated.

    -Dino Delellis

  • invalid-0

    Its amazing some of the things that Bush did and unfortunatley he made America the butt of so many jokes. Lets hope Obama restores some faith in the American govenment. Mind you when George left it did give many people reason to smile with clever commercials such as the one below where a hair removal cream firm used the slogun “Goodbye Bush” to sell their product!

    “Goodbye Bush Advert”/