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Proposed Bush Administration Rule Fails to Strike Balance Between Religious Liberty and Access to Health Care

Alexa Kolbi-Molinas,
Deputy Director, ACLU Reproductive Freedom Project
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October 1, 2008

(Originally posted on ACSBlog.)

Last Thursday, the 30-day public comment period closed on a controversial rule proposed by the Department of Health and Human Services (HHS) that would expand the ability of institutional and individual health care providers to refuse to provide services to which they have a religious or moral objection.If implemented, the rule could severely undermine access to reproductive health care, as well as other health care services for traditionally marginalized communities.

The proposed rule has generated a tremendous amount of controversy since it was released in late August — an astounding 200,000 comments were submitted to the Department during the comment period demanding that it be withdrawn.With good reason, too:not only is the rule unnecessary, but it also seriously jeopardizes patients’ access to essential health care services and vastly exceeds the Department’s authority under existing law.As the ACLU pointed out in its own comments (PDF), for more than four decades, Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of religious belief, has required employers to attempt to accommodate current and prospective employees’ religious and moral objections to the provision of any health care service.

Title VII has long been understood to protect individual religious belief so long as patients’ needs are also met in a safe and timely fashion.Alarmingly — but perhaps not surprisingly for an administration that has routinely put politics and ideology before science and patient health — the proposed rule threatens to take patients’ needs out of this equation.

To begin with, the proposed rule dramatically expands the reach of existing refusal laws in ways Congress never intended.For example, the rule broadly re-interprets federal laws to allow providers to withhold basic information and counseling from their patients, absolving them of their legal and professional responsibility to the patient, and essentially abandoning patients in the face of a health care provider’s refusal.As a direct result of the rule, patients may never be able to access the refused health care — or even know about their right or option to do so.The rule could also create a blanket, unqualified right for individuals to refuse to participate in any health service or research conducted in programs supported with federal funds.

Thus, nothing in the proposed rule appears to prevent a provider from failing to inform a woman for whom pregnancy may seriously endanger her health or life about the option of sterilization; from failing to tell a rape survivor about the existence of emergency contraception; or from refusing to tell a gay adolescent about the importance of using condoms to protect himself against HIV.Likewise, nothing seems to prevent the rule from being invoked by a physician who offers treatment to Medicaid patients living with HIV/AIDS, but refuses to provide such treatment to gay men because of her religious beliefs about homosexuality; or a nurse at a Title X clinic who refuses to provide contraceptives to a white woman whose husband is African American because of the nurse’s moral opposition to interracial marriage.

The rule is perhaps best known, however, for its attempt to confuse abortion with contraception. The proposed rule comes on the heels of a draft version, which was leaked to the press approximately one month earlier.In the draft, the Department deliberately conflated contraception — which is widely understood to prevent a pregnancy from occurring — with abortion — which is widely accepted to terminate an already existing pregnancy.The Department did so in order to explicitly target those state laws designed to increase contraceptive access and to guarantee that reproductive health services are treated on par with other health care services. This attempt to treat some of the most common forms of contraception, such as birth control pills, as abortion is and was virtually unheard of in existing law, including the Department’s own regulations.

Faced with strenuous opposition, this exceptional definition was removed from the latest version of the rule.Yet the Secretary has repeatedly suggested that the current proposed rule has been purposefully — and ambiguously — designed to continue to allow health care entities to argue that some of the most commonly used forms of contraception should be treated as abortion. Thus, as a result of the overly expansive definitions in, and confusion created by, the rule, the delivery of reproductive health services could be significantly disrupted to the severe detriment of patients.This could present a substantial step backwards for the health of the more than 17 million women in this country who rely on publicly funded contraceptive services.

Patients of all faiths and no faiths need health care.The Department — the federal “government’s principal agency for protecting the health of all Americans and providing essential human services, especially for those who are least able to help themselves” — should have the needs of all Americans at the forefront of its agenda.But instead, in the midst of a growing health care crisis in this country, the Department has chosen as one of its parting acts to propose a rule that’s express purpose is to increase the ability of providers to deny accurate, comprehensive, and unbiased treatment to their patients; a rule that works to limit access to health care as opposed to working to expand it for those who need it most.

At a time when more and more Americans are either uninsured or struggling with the soaring costs of health care, the Department should listen to the public outrage and revoke these proposed regulations.

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