Conscience rule on abortion services faces uphill battle

An 11th-hour Bush administration final rule may have bolstered protections for physicians and other health care professionals who object to providing abortion-related services based on moral or religious beliefs. But the regulation likely will be short-lived.

The move has prompted vehement protests by some opponents in Congress and several medical organizations. They say the regulation goes beyond existing protections and could endanger critical funding and jeopardize access to care.

Officials with the Dept. of Health and Human Services said the regulation was intended to clarify and reinforce nearly four decades of conscience laws on the books. The statutes allow the government to withhold or withdraw federal funding from recipients found to be coercing or discriminating against doctors or others who refuse to provide abortion services because of personal convictions. The agency said the rule came in response to a "lack of understanding" of the anti-discrimination laws, as well as reports of increasing pressure on physicians to compromise their medical ethics.

The final regulation takes effect Jan. 20 -- inauguration day for President Barack Obama, who also has expressed opposition to the rule. The Bush regulation imposed a new mandate requiring HHS-funded entities to certify in writing their compliance with the conscience laws by Oct. 1, 2009. It also authorized the HHS Office for Civil Rights to investigate complaints of alleged discrimination.

"This rule protects the right of medical providers to care for their patients in accord with their conscience," HHS Secretary Michael O. Leavitt said when the final rule was announced Dec. 18, 2008.

The department encouraged physicians to disclose openly to patients what services they do and do not provide, but it said nothing in the rule restricts health care entities from offering any legal medical procedure, including abortion.

Fierce opposition

HHS withstood a torrent of comments opposing the rule after it was first proposed last August, including calls for its withdrawal by the American Medical Association, American College of Obstetricians and Gynecologists, and dozens of other medical organizations, as well as state officials.

Many doctors and abortion-rights advocates worry that several provisions are too vague and could lead to unnecessary confusion, ultimately impeding patients' access to a variety of health care services.

"The rule is very clear about the rights of providers and much less clear about the rights of patients to receive the information and services they need and deserve," said Marilyn Keefe, director of Reproductive Health Programs for the advocacy group National Partnership for Women & Families.

For example, the regulation leaves undefined the term "abortion" while expanding the scope of refusal rights to anyone who "assists in the performance" of certain procedures, such as counseling, referrals, training or research activities. That could put in jeopardy patients' access to everything from birth control to end-of-life care, Keefe said.

Given such broad definitions, in some cases individual doctors may be required to produce written certification of compliance, despite expressed exemptions for doctors receiving certain Medicare or Medicaid funds, states a September 2008 comment letter signed by the AMA and others.

The Equal Employment Opportunity Commission also raised concerns that the rule creates "an absolute right to religious accommodation" despite judicial interpretations requiring a balancing of possible hardships on employers. That could prove burdensome on smaller businesses, such as physician offices, the EEOC said in a September comment letter.

Momentum is building to undo the rule. The day the final version was released, House Speaker Nancy Pelosi (D, Calif.) said Congress would work with President Obama to rescind it.

Democrats in Congress could take advantage of a rarely used law called the Congressional Review Act to nullify the final rule because it was issued so late in President Bush's final term. That gives the next Congress a window in which it can overturn the late regulation with a simple joint resolution.

Affirming physicians' rights

Supporters counter that the rule merely solidifies physicians' long-standing rights.

"What this [rule] does is put more teeth in existing federal laws because they are really unenforceable by individuals," who do not have a private right to sue over any statutory violations, said Francis Manion. He is senior counsel for the American Center for Law & Justice, a legal advocacy group specializing in religious rights.

Existing conscience protections, which date back to the 1970s, never were limited to abortion, he noted. Meanwhile, access to services such as contraception or abortion referrals remain available through other sources willing to provide them.

But access-to-care limitations become a reality if doctors' basic rights are compromised, said David Stevens, MD, CEO of the Christian Medical Assn. He cited examples of medical students steering clear of certain specialties and doctors losing out on jobs or training opportunities under pressure to join in abortion activities.

"We are going to do everything we can to make sure these laws are enforced, because if not, we will fundamentally change the makeup of health care and take away basic constitutional rights every citizen should enjoy," he said. "Many patients want a provider who shares their view, and if you drive these people out of health care, we're going to be worse off."

Manion conceded that the rule may not survive long. But it has raised awareness of the issue, and he hopes it will force health care institutions to re-evaluate -- or in some cases establish for the first time -- relevant anti-discrimination policies, he said.