Obama voids Bush conscience rule in favor of decades-old protections

The administration says the rule extended protections too far beyond the scope of abortion services. Meanwhile, House Republicans are pushing several anti-abortion bills.

By Tanya Albert Henry — Posted March 7, 2011

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The bulk of a Bush administration health care conscience protection regulation -- one that many in organized medicine feared would undermine patient access to care -- was rescinded by a final rule the Dept. of Health and Human Services released Feb. 18.

After considering more than 300,000 comments, HHS stripped the Bush White House's more expansive definitions of the protections available under federal conscience laws that have been on the books for decades, including the Church and Weldon amendments. The move does not affect those established protections for physicians or other health professionals who object to providing abortion services on moral grounds.

The final Obama administration rule does, however, retain the Bush enforcement process for health professionals who believe they have been compelled to perform or assist in an abortion. The HHS Office for Civil Rights will investigate complaints.

Debate over clarity

Physicians who opposed the Bush rule were generally pleased. If left in place, they said, it would have inappropriately expanded conscience protections beyond their historical domain of abortion to include virtually any medical service, including contraception and end-of-life care. Federal funding could have been withheld from those found to be in violation.

Bush rule opponents said it would have created uncertainty among health professionals about their legal and ethical obligations to treat patients. Some feared the language was broad enough to give a wide range of health care workers a means to interfere with the provision of legal care that they found objectionable.

The Obama rule avoids this by ensuring that patients can receive the care they need while protecting doctors who are uncomfortable providing the services themselves, said Suzanne T. Poppema, MD, immediate past board chair of Physicians for Reproductive Choice and Health.

"This righted a serious wrong," she said.

But supporters of the Bush rule said stripping the definitions diminishes the civil rights of physicians and others who oppose abortion and opens them up to discrimination.

"They inserted ambiguities and took out clarity," said J. Scott Ries, MD, the Christian Medical and Dental Assn.'s vice president for campus and community ministries. "With these ambiguities inserted, will physicians be required to discuss abortion-inducing contraception? ... Does it mean physicians must talk about abortion?"

The American Medical Association, the American Congress of Obstetricians and Gynecologists, the American Academy of Family Physicians and nearly three dozen other national and state medical societies were among those that urged HHS to withdraw the Bush administration's rule.

The AMA and ACOG did not have immediate comments on the Obama rule. But in a September 2008 letter to HHS, the organizations said: "We support strong conscience protections for physicians and other health professional personnel, especially in the context of abortion. ... [However,] the exercise of these rights must be balanced against the fundamental obligations of the medical profession and physicians' paramount responsibility and commitment to serving the needs of their patients.

"As advocates for our patients, we strongly support patients' access to comprehensive reproductive health care and freedom of communication between physicians and their patients, and oppose government interference in the practice of medicine or the use of health care funding mechanisms to deny established and accepted medical care to any segment of the population."

Rights of physicians

Adam Sonfield is a senior public policy associate at the Guttmacher Institute, which supports abortion rights. He said the final rule got rid of parts of the Bush regulations that went beyond what Congress intended. But he wishes the language had gone further in protecting the rights of physicians who want to provide abortion services: "When we talk about conscience rights, we should be talking about both sides."

Those on the other side of the debate say the new rule will hurt access to care in a different way. The CMDA's Dr. Ries pointed to a recent survey showing that 91% of health care professionals who define themselves as faith-based would leave the profession if they couldn't practice according to their personal ethical standards. Freedom2Care, a coalition that includes the CMDA, the Catholic Medical Assn. and the Assn. of American Physicians and Surgeons, also found that 39% of respondents reported discrimination from a superior.

The CMDA and the Americans United for Life, an anti-abortion group, said congressional action is needed. "The protection of the basic civil right to provide care without participating in life-destructive activities must not be dependent on the whims of an administration that has made expanding abortion central to its mission," said AUL President and CEO Charmaine Yoest, PhD.

GOP anti-abortion bills unveiled

House Republicans already have introduced several anti-abortion bills this session.

The House Energy and Commerce Committee in February approved the Protect Life Act, introduced by Rep. Joe Pitts (R, Pa.). The bill would ban federal dollars from being used to pay for abortion coverage under the health system reform law. If an institution refused to provide an abortion, the measure would prevent federal money from being withheld from it.

The Catholic Health Assn., in a letter to Pitts, applauded the effort. But in testimony submitted to the panel's health subcommittee, Physicians for Reproductive Choice and Health said it would give hospitals permission to deny legal abortion to any woman at any time, even if the pregnancy threatens her life.

A separate bill, the No Taxpayer Funding for Abortion Act, introduced by Rep. Chris Smith, (R, N.J.), seeks to stop all federal funding for abortion, whether direct or indirect.

The Hyde Amendment and an Obama executive order already forbid federal abortion funding, but plans receiving federal money can offer abortion coverage if private funds pay for that portion of the insurance.

A bill from Rep. John Fleming, MD, (R, La.) -- the Abortion Non-Discrimination Act of 2011 -- aims to make permanent protections in the Weldon Amendment and would grant U.S. courts jurisdiction over actual or threatened violations.

In February, the House passed a fiscal 2011 spending measure with language zeroing out all federal funding for Planned Parenthood, including money for primary and preventive care to women and families. Senate Democrats vowed to restore the funding when that body takes up the bill.

Planned Parenthood said its 800 health centers see 3 million patients annually, and about 90% of that care is preventive and not abortion related. Without funding, leaders said, 500 centers would close, cut services or reduce hours.

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Conscience laws still in place

Although a new HHS final rule rescinds most of a Bush-era regulation on conscience protections for health care professionals, the latest move does nothing to alter several conscience protections in statute:

Church Amendment (1973) Prevented federal, state or local entities getting federal funds from discriminating against health care workers or institutions that refuse to perform or participate in any lawful health service, including abortion or sterilization, based on moral objections.

Public Health Service Act (1996) Extended conscience protections to individual and institutional health care entities, including medical training programs, that refuse to perform, train in or refer for abortion services.

Weldon Amendment (2005) Extended conscience protections to individual and institutional health care entities, including hospitals and health plans, that refuse to provide, pay for or refer for abortion services.

Source: Dept. of Health and Human Services

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