HHS Publishes Provider Conscience Expansion Rule

The Department of Health and Human Services today published a new
regulation broadening protections for health care providers who refuse
to provide health care services based on religious or moral grounds.
The new regulations, which have been widely denounced by women’s health
groups, physicians’ groups, members of Congress, President-Elect Obama, the Equal Employment Opportunity Commission, and by over 200,000 individual commenters filing opposition to the regulations,
expand the definition of health care providers protected by provider
conscience regulation and allow dissenting providers to refuse to refer
patients for treatment in addition to refusing treatment itself.

The administration made almost no substantive changes to the regulation following the period of public comment, says Adam Sonfield, senior public policy associate at the Guttmacher Institute. "The 200,000 comments in opposition to the rule they dismiss," says Sonfield. "They pretend to respond directly to them, but they actually don’t."  The only major substantive change the administration made to the rule is to expand the definition of the workforce the rule applies to — for instance, it now includes contractors.  

An early, leaked draft version of the regulation specifically
suggested that providers who consider hormonal birth control to be an
abortifacient should not have to prescribe it or refer patients for its
prescription.  The regulation relied on arcane, non-medical definitions
of pregnancy to suggest that the belief that pregnancy begins at
fertilization is valid and that, a hormonal contraceptive, which
anti-choicers claim block implantation of a fertilized egg, is
tantamount to abortion.  The second, released draft, now published,
does not conflate contraception with abortion, but in its broad scope
nonetheless provides protections for providers who would like to
do just that.  "The regulation confirms what we feared," says Marilyn Keefe of the National Partnership for Women & Families. "HHS
refused to allay any of the concerns raised in earlier iterations.  Contraception
clearly remains a target."

One of the rule’s more disturbing provisions is the announcement that Title X family planning funding will now be open to grantees who refuse to counsel women on the availability of abortion.  Title X has always required that when a woman tests positive for pregnancy, she must be counseled on all of her options, including abortion, and given referrals based on what her expressed interest.  The regulations state that Title X funding will be granted "non-discriminatorily" to applicants, including those who refuse to provide counseling and referral for abortion.

Additionally, the rule fails to make clear whether health care centers that do intend to provide unbiased options counseling can even ask potential employees whether they are comfortable
participating in an abortion procedure or counseling a woman about her
options, Roger Evans, director of litigation at Planned Parenthood, acknowledged today. 

Moral objection, meanwhile, is not strictly limited to religious belief
— it can mean any personal moral commitment, which is a much broader
protection than "traditional conscience clauses," says Jessica Arons, of the Center for American Progress.  

The rule must now be submitted to both the Government Accountability
Office and both houses of Congress.  Congress has a period of time to
review the rule (and because of the timing of the rule’s publication,
this period will stretch into the 111th Congress), during which time a
motion to disprove can be introduced.  If the motion to disprove is
passed by both houses of Congress and signed by the President, the rule
cannot be enforced or defended in court. Using the Congressional Review Act in this way to invalidate the
regulation, however, would be "controversial," says Matt Madia, of OMB
Watch. A motion to disprove has to see an up-or-down vote; it can’t be
attached to appropriations bills or other must-pass legislation.
"Everyone has to go on record on the issue, and there’s no way to fudge
it," says Madia.

If this avenue fails, Congress
could refuse to appropriate funds for implementation of the rule, or
Congress could pass the legislation introduced by Sens. Hillary Clinton
and Patty Murray that would prohibit HHS from implementing the
Finally, the new administration could begin a new round of rule-making, perhaps the most time-consuming option.

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  • invalid-0

    Now when Christians seek my services I can refuse service based on my own morals. What’s good for the goose and all.

    • invalid-0

      Your response demonstrates a lack of maturity and open heartedness. There is a very hard edge there.

      I am sure that if you were a veternarian and did not believe in euthanizing animals that were not clearly sick and a person that came to you asked you to do it, you would feel it within your rights to refuse him. (and this is only an animal.)

      If your opinion becomes law there will be no religious hospitials which consist of 30% of our health system. So perhaps when you come in for a historectomy to save your life, there may not be anyone to tell you that they do not serve non Christians who are pro choice even if they felt that way, which surely they do not.

      I think those of us that care for the pro choice community have to be very careful of what we wish for.

      What is happening to the new dawn of Obama unity and compromise?

  • invalid-0

    Sorry to disappoint… health care cannot be denied based on federally protected classes such as religion.

    Instead you might be able to deny services based on the patients belief in imaginary friends and/or support of cannibalism.

    Health care CAN be denied for reasons such as a patient’s political affiliation, patient’s objection to a woman’s right to choose, patient’s support for this regulation, …

    • invalid-0

      Tell it Like it Is

      Calling killing your baby health care is like calling Dr. Kevorkian’s help, health care. Death care sounds more honest don’t you agree? I am not sure why some pro choicers are afraid to call a spade a spade. A pro choice advocate believes women should have a right to kill their baby. Get over it people and stop hiding behind ridiculous words.

      Most prochoicers have to open their eyes and see that it really is not unreasonable that a doctor, some of whom still take the Hippocratic oath (how archaic) , may not want to kill a women’s baby. Seems to me that prochoicers should allow for the doctors to have choice too; thereby avoiding being blatant hypocrites. I mean, killing ones own baby is not for everybody, as is not killing someone else’s baby. I thought being prochoice meant one is for choice. You know? This just kills credibility.

      Seems to me that you have reproductive health when you are capable of reproducing. So reproductive health care is health care that helps one’s reproductive ability stay intact. No? Abortion on the other hand is the destruction of a conceived unique human being. We all have to acknowledge that. No? It is an obvious fact. It is perfectly legal so why can’t we all just say what it is without being embarrassed and calling it health care for goodness sake? Let’s call it hmmmm… Genocide Care – that’s it…. geno from the Greek genos meaning birth and cide from the Latin caedere meaning to cut, kill or hack. Perfect really don’t you think? Remember it is all perfectly legal so let’s not us pro choice people supporters be afraid to tell it like it is.

  • invalid-0

    Here is the text of my comment that was deleted twice from HHS Sec Leavitt’s comment board, coward that he is.

    “Well, I for one am happy to know that soooo many doctors view their right to deny women access to and information regarding contraception as a matter of personal integrity, and not a matter of women’s health.

    I certainly would have all kinds of faith in physicians who put unshared moral values above the health and well-being of women. No really.

    I never thought of medical professionals as an enemy of my own physical health, mental well-being and yes, my financial security. I do now.”

  • http://www.funnyfarmonline.org/ invalid-0

    1. Thanks very much for letting people know about this; so far I have seen the story all over the lefty blogs I frequent, but haven’t really seen it in the major news media outlets.

    2. Can you please provide an updated link to the HHS services document you link to above? I tried to get there, and got a “This Page Cannot be Found” message.

  • http://www.funnyfarmonline.org/ invalid-0

    Please ignore my previous request. The link now appears to be working…

  • brady-swenson

    of making related documents and commenting on this regulation difficult by changing and removing links. During the commenting period the page to leave comments about the regulation changed several times. We wrote about it here. Glad it’s back up, though. Thanks, Tom.

  • wendy-banks

    Wow, all good points to know! If I didn’t feel too ill to work anymore, I could use this as ammo.

    "It’s against my beliefs as a Witch to serve you because…" *Chuckles*

    Best laugh I had all day–Way too many fundies where I live *gags*.

    Whom was out of the ‘broom closet’ when I worked at a catholic hospital and strangely enough had one of the nuns call me Sister in God/dess because we both worked for the Light. Weird, but I guess so *shrugs*. I guess someone did some reading…

    Goddess bless

  • invalid-0

    As a doctor, it is horrible to feel pressed into slave labor. After suffering working 36 hours straight every 3rd or now 4th night as well as every usual work hour for many years, one gets rather used to slave labor. I am not against abortion. In medical school, I attended the optional rotation through the abortion clinic. I was shocked at seeing some abortions done in the 2nd trimester for women who had had previous ones and still had not properly used their birth control. Still I am not against abortions but I am not that kind of doctor and am not trained to do them. Daily, there is a patient who wants narcotics or me to spend an extra hour for free doing clerical stuff to help them use a different prescription plan that may save them money or many other unreasonable demands. I still do a lot of them and so have less of my own time, and my family has less than I would if I could get paid for such work. Doctors are the only regulated profession. Now well-meaning but clueless people (who will be paid for computer work?) have decided that forcing us to use electronic medical records will save money in the health care system. I have used many of these and there still is not one that works well enough. The best one is the one that the V.A. uses but it still has has inefficiencies and requires good computer people to keep it working well. What doctor that actually spends time with patients can afford that? Anyone who has felt the stress of having the computer not work when they needed to depend on it for a deadline may be familiar with the chest pressure that can create. Now multiply that a few times and throw it on top of doctors trying to manage so many demands. We flex and try to help while all the big, greedy insurance companies build their systems for their efficiency and profitablility and require us to flex (less efficient) in order to be paid the minimum agreed to. This HHS thing made me breathe a little. Finally, someone acknowledged that killing oneself to become a doctor to try to help in important ways does not mean that any one human doctor should be able to flex to all the whimsical demands of everyone around them. Porche mechanics are not forced to work on Volkswagens. Even small, poor restauranteurs are allowed to refuse service to people who are rude and yelling in their establishment. This tide as expressed in this blog really does not allow doctors any humanity or freedom to be human. There is this blog about some doctors “refusing paps”. Of course not all doctors do paps. Have you ever heard of a cardiologist or a neurologist doing a pap? They did them in medical school but with supervision and you really would not want them to do them now. Yes, paps are important to have done every year. Just because a doctor does not do them does not mean they are refusing paps to patients. Are patients now so lazy that they are going to rile against their local Porche mechanic that does not work on Volkswagens. It would be much better to stop complaining and threatening and get off your butt and find a Volkswagen mechanic.

  • invalid-0

    This regulation only reinforces rules that are already on the books- that doctors cannot be forced to perform a procedure they think is morally wrong simply because a patient demands it.

    Question: when your family member is sick, would you prefer a doctor who has moral integrity or one who does not?

    If you prefer one who does, then you would logically support this law, because no matter what your view on abortion, you think that society is better off when people are free to live by their personally held moral beliefs. That includes doctors.

  • invalid-0

    “Question: when your family member is sick, would you prefer a doctor who has moral integrity or one who does not?”

    I would prefer my family and particularly the women or girls not be treated by any member of the religious right. What you call “moral integrity” I call bigotry and wingnuttery.

  • invalid-0

    I don’t want a doctor who doesn’t feel right about giving me the medical treatment I want. I want a doctor shares my beliefs. They should have the freedom to say no.

  • emma

    Agree with Colleen – I would never allow a fundamentalist to examine me or my family.


    I’d like a doctor with moral integrity. My GP, for instance. An excellent, highly competent doctor who respects his patients and would never consider imposing his beliefs on his patients. He divides time between his general practice and a sexual health clinic. He is infuriated by doctors who refuse to prescribe BC pills or who won’t provide referrals for abortion services. He finds the idea of medical professionals forcing their religious beliefs on their patients to be rather abhorrent.


    In other words ‘moral integrity’ doesn’t mean ‘thinks abortion is icky so refuses to provide referrals’ or ‘thinks sex should be for procreative purposes only, therefore will not prescribe contraceptions, even for treatment of medical conditions’. Moral integrity means that you treat your patient and if the patient needs further services, they are referred appropriately. It means respecting people and understanding that the way they live their lives is their own choice. In the case of unplanned pregnancy, it means providing all appropriate information on abortion and other alternatives, allowing the patient to make the decision, and arranging any necessary appointments.


    A doctor’s right to religious freedom does not trump my right to NOT have any religion imposed on me. And a doctor (or other medical professional) who respects and understands that is much more likely to be the one with moral integrity.


  • invalid-0

    If every person had access to a plethora of health care professionals and could easily pick one that held their same beliefs – the religious pro-lifers could pick a pro-life doctor, those who believe in a right-to-choose could pick a doctor that would offer those services, the young girl nervous about getting contraception for the first time could obtain it without dirty looks and judgment… if only we lived in that type of world, this type of rule wouldn’t be a problem. The fact of the matter is that this rule which gives doctors more freedom will effectively deny services to a large portion of the population. Those who live in rural areas or have limited access to health care (the latter group growing by the minute, by the way) will be stuck with whatever their services the local doctor decides to provide.

    I don’t believe in taking away one group’s freedom for the sake of another. If this rule absolutely must go through, there should at least be some sort of compromise to protect those who would be denied basic services…

  • invalid-0

    I don’t think you understand the regulation that is proposed. It’s not about simply refusing to do a procedure or prescribe a medication because they’re untrained or unfamiliar with it or that it’s not their specialty. This regulation gives (for example) a gynecologist the ability to deny a woman a PAP or birth control or an abortion simply because of their own personal convictions. If a woman is unmarried some of these doctors will refuse all gynecological services to them because their personal beliefs dictate that those services are only necessary for married women who are “allowed” to have sex. Or they may refuse to dispense birth control and INFORMATION about birth control all together because they believe it’s immoral. So again, if it were simply about denying services because the doctor in question is of the wrong specialty or simply untrained in the matter, this would be a very different argument. As it stands it’s an outright assault on the health of women.

    • invalid-0

      This is SO ridiculous. These arguments are pointless! Ok–if you are a woman who has sex w/ her boyfriend(s) so you need birth control and you know you feel it is your right to have an abortion if you get pregnant when you don’t want to, would you EVER go to a doctor who doesn’t dispense the pill or who isn’t an abortionist????!! Do you women know your doctors?! Why would you use this argument? Go to a doctor who you know will give you the services you are requesting! Would I go to a orthopedic doctor with a broken arm and then ask, “while i’m here will you clean my teeth as well?” and then get mad that he WON’T PROVIDE ME THAT SERVICE?!!! These arguments of doctors risking women’s health by not giving them birth control???? go to a freaking doctor who gives it then! Want an abortion?? Go to a clinic that you know gives them (and promotes them!) Get a real argument!

  • invalid-0

    “It would be much better to stop complaining and threatening and get off your butt and find a Volkswagen mechanic.”

    First, this is not the position of the AMA perhaps you should write them with your complaints about slave labor and those onerous regulations.
    Second, you’re the first ‘physician’ I’ve read who is unable to spell ‘Porsche’. Also you sound a lot like the home schooled, knuckle dragging fundie misogynist who posts here and claims he is a pharmacist, a nurse, and a nursing student, owns his own ‘pro-life’ business and so on when he mistakenly believes that such a claim would make others respect his opinions.

  • invalid-0

    By moral integrity I mean someone who lives by their beliefs and does not lie to themselves or others in order to keep a job, as pro-life doctors would have to do if this regulation was not in place. I did not mean to imply that those in favor of abortion do not have moral integrity. Both pro-choice and pro-life doctors can have moral integrity as long as they hold to their own beliefs and practice accordingly. This rule protects that right in a country with diverse views on all sorts of issues. And thankfully, you have the freedom in this country to choose a doctor who believes as you do, just as you have the freedom to name-call when you encounter someone you disagree with. What if things swung the other direction in this country and doctors were being pressured to conform to the views of the “religious right” whom you call bigots and wingnuts? This rule would equally protect doctors from that influence, and you would be grateful for those protections.

  • invalid-0

    I am glad you have found a doctor that you agree with and respect. That is the beauty of this regulation. It allows doctors to practice according to their own beliefs (that’s what I mean by “moral integrity”) and therefore protects Americans’ ability to find a doctor who shares their beliefs.

    I find it ironic that you refer several times to the idea of someone “forcing their religious beliefs on me.” Isn’t that exactly what this rule is designed to guard against? If a doctor feels strongly that a procedure is morally wrong, and a patient demands that procedure anyway, isn’t the patient now forcing their beliefs on the doctor? If moral integrity means “respecting people and understanding that the way they live their lives is their own choice” then shouldn’t you be in favor of a rule that protects doctors who choose not to perform certain procedures? Without this rule, doctors could be coerced into doing things they believe are wrong, which could include abortion, or could include forced referrals to a Catholic priest for spiritual counseling. I’m sure you would want a law to protect doctors from the latter, and if so, any shred of intellectual integrity would lead you to support this rule.

  • invalid-0

    Integrity at the expense of women’s lives is not integrity…it is misogyny.

  • mellankelly1

    Integrity at the expense of women’s lives is not integrity…it is misogyny

    I hate the thought of my daughters having to pick through the available doctors to find one who will prescribe birth control, EC or (if need be) all of their options regarding an unwanted pregnancy.  That thought keeps me up at night.  The implications of doctors basing their medical care on their personal religious beliefs is abhorrent… their number one priority should be with their patients well-being, not their idea’s regarding the morality of certain (perfectly legal) medical options.

  • emma

    No. This rule allows medical professionals to abuse their power by denying services, and the main people who are going to suffer from this are women. Poor women and women in rural areas – those who can’t shop around for an ideologically agreeable doctor – are going to suffer even more disproportionately.

    If someone doesn’t want to violate the principles of their religion, they shouldn’t enter a profession in which people are going to be reliant on them for services they’re unwilling to provide. No one’s right to ‘religious freedom’ trumps my right to necessary medical care. Medical professionals are employed to provide health care, not to be my moral guardians.

  • invalid-0

    Are you aware that many of the doctors who provide services to poor and rural women are pro-life? Many federally qualified health centers in underserved areas operate under a “Christian” name. The doctors there take less pay in order to serve these communities. Are you suggesting that you want to drive out any pro-life doctor who provides care to these communities? You will leave many areas with no doctor at all.

    ‘No one’s right to religious freedom trumps my right to necessary medical care.’ Seriously? Most of the procedures we’re talking about here can hardly be called medically necessary. Medicine is not a profession that should be driven by consumer demand. Your statement suggests that someone’s “right” to an abortion justifies holding a gun to the nearest doctor’s head and demanding that he or she perform the procedure. Are you suggesting that all doctors who believe abortion kills a human being, and therefore does not fit with the tenets of medicine that have existed for centuries, should be forced out of modern medicine? Your intolerance is astounding, and your “pro-choice” stance is exposed as a principle that you only apply when the choice is made to fit your own personal agenda.

  • invalid-0

    The world does not revolve around you. Your religion may have as its god unfettered access to implements, devices, & minions to allow you to be so undiscriminating in your behavior as to invite unearned motherhood and, uh, various diseases. We know you think we should all bow down to your god, but we have discovered a plethora of engaging interests that free us from the bondage of your god, and, therefore, we don’t need or want the entire medical services sector of the country, and indeed, the world, to be skewed by a bunch of whining women who were too busy for algebra and art, and can’t keep focused on anything except the desperate quest to prove to themselves that a boy found them attractive for 30 seconds.

  • invalid-0

    If I have sex outside of marriage, that is nobody’s business but mine. I, too, will not work with a doctor that brings his/her religious beliefs into practice.

    And just for the record for the absurd comment above. Marriage does NOT equal absolute safety from STIs. I was married and faithful to a man and I ended up with HPV that led to cervical cancer because he had a girlfriend. Don’t give me your “marriage is the answer” crap.

    If a doctor doesn’t want to have to make tough decisions? Don’t be a doctor. We all have choices and they chose to enter a field where they may have to do these things. Life is tough, get a helmet.

  • invalid-0

    Ok–if you are a woman who has sex w/ her boyfriend(s) so you need birth control and you know you feel it is your right to have an abortion if you get pregnant when you don’t want to, would you EVER go to a doctor who doesn’t dispense the pill or who isn’t an abortionist????!!

    Tell that to women in rural areas, where there might be just one or two doctors within driving distance.

    You may as well say, “If your cable TV service is bad, just switch to another provider!” Sometimes there are no other options.