So still-President Bush is trying to expand `conscience clause' rules, which permit health care workers (doctors and nurses) to refuse to participate `in any procedure they find morally objectionable'.
Finally, I assume a certain preference for individuals, namely, that respecting the moral views of whole institutions is less important, in general, than respecting the moral views and projects of individuals.
Midnight Reg on ‘Right of Conscience’ for Health Workers Moves Forward
(by Christina Jewett, ProPublica, December 16, 2008)
A controversial midnight regulation expanding health workers' right to take a moral stance against abortion (or any other procedure that rankles their conscience) sailed through final Office of Management and Budget approval this week and, barring an act of Congress, will soon become law.
The rule would deny federal funding to any medical facilities that discipline workers " from secretaries to managed care executives " who refuse to assist in procedures they find morally troubling. It’s one of many midnight regulations we’ve been tracking.
The ‘provider conscience’ rule applies to any procedure performed in a federally funded medical setting that "violate(s) an individual’s conscience," but it most pointedly singles out abortion. It goes beyond existing laws that bar religious discrimination against workers and protect medical professionals who refuse to perform tasks they find morally repugnant.
The new rule pitches a bigger tent over the types of workers and volunteers who can stage a proverbial moral sit-in. While workers directly involved in procedures used to get special protections, now they would extend to anyone from a scheduler arranging for abortion counseling to a janitor cleaning an operating room.
The new rule also gives the federal government power to withhold funds from medical care providers found to have discriminated against workers who follow their conscience. And it mandates that more than 580,000 U.S. medical providers sign ‘certifications’ that they will not discriminate against workers who refuse to perform tasks they oppose on moral grounds.
Those were the terms of the regulation proposed several months ago by Michael Leavitt, secretary of the Department of Health and Human Services. Since then, opposition has cropped up from 28 senators, the American Medical Association and a Bush appointee who enforces employment discrimination laws.
The Alliance of Catholic Health Care and the U.S. Conference of Catholic Bishops support the rule. As the Los Angeles Times has noted, the two groups argue the proposed rule goes beyond abortion and bolsters the rights of doctors refusing to hand out the morning-after pill.
The American Medical Association has also noted the sweeping potential for the regulation"and has cautioned against it. The AMA argued that everyone from a physician to a receptionist could refuse to accommodate biomedical to behavioral research. Ultimately, the group argues, the law "seriously undermines patients’ access to necessary health services and information."
The Bush appointee who has objected to the law, the legal counsel to the Equal Employment Opportunity Commission, has argued it treads ground that has been painstakingly mapped under laws that prohibit religious discrimination in the workplace. Two other commissioners on the EEOC have also said they object to the proposal.
The established laws protect workers from doing tasks they find objectionable, such as a pharmacist who refuses to fill a prescription for oral contraceptive. But they also assure that the worker’s objection does not put an "undue burden" on the employer by hindering it from fulfilling its mission. The new rule, the commissioners argue, could hinder a pharmacy’s ability to do business or a patient’s ability to access necessary care.
HHS spokesman Kevin Schweers told us he could not comment on whether the agency changed the regulation since its August draft, only saying, "HHS officials made considerable efforts to address all comments that were received." Changes, if any were made, would appear in the yet-to-be-released final rule.
The regulation could appear any day in the Federal Register. The coming Obama administration could try to reverse the rule, though as we’ve noted, that’s not an easy task.
You have a point about the blogger not clearly making his case, Thomas. Maybe the blogger's assumption is that, when health care is involved, medical people are obligated by the "Hippocratic oath."
Bush-Era Abortion Rules Face Possible Reversal
(By LAURA MECKLER, The Wall Street Journal, DECEMBER 17, 2008)
WASHINGTON -- The outgoing Bush administration this week will finalize a regulation establishing a "right of conscience" allowing medical staff to refuse to participate in any practice they object to on moral grounds, including abortion but possibly birth control and other health care as well.
In transition offices across town, officials in the incoming Obama administration have begun considering how and when to undo it.
The regulation is one of a swath of abortion and other reproductive-health issues under review by the Obama team, which is preparing to reverse a variety of Bush measures, according to officials close to the transition. The review is part of a sweeping scrutiny of Bush-era legislation and regulation on issues across the federal government, from environmental and labor rules to defense spending.
Decisions that the new administration will weigh include: whether to cut funding for sexual abstinence programs; whether to increase funding for comprehensive sex education programs that include discussion of birth control; whether to allow federal health plans to pay for abortions; and whether to overturn regulations such as one that makes fetuses eligible for health-care coverage under the Children's Health Insurance Program.
Women's health advocates are also pushing for a change in rules that would lower the cost of birth control at college health clinics.
Obama aides will have to settle many of these questions in issuing their first budget in February.
"We have a lot of work to do to fix the damage the Bush administration has done," said Nancy Keenan, president of NARAL Pro-Choice America.
As one of his first actions, Mr. Obama is likely to issue an executive order lifting President George W. Bush's restrictions on funding for research using embryonic stem cells, a move with bipartisan support.
Women's health advocates also expect early action on the "global gag rule," which bars foreign organizations from using their own money for abortion services or advocacy if they accept U.S. aid for family planning. This policy was instituted by President Ronald Reagan, immediately overturned by President Bill Clinton and then reinstated by Mr. Bush.
Mr. Obama is also expected to restore federal funding for family planning to the United Nations Population Fund soon after taking office. This policy also has gone back and forth with control of the White House, with Republicans arguing that the U.N. agency supports coercive abortions because of its work in China with its one-child policy, and Democrats saying that the agency doesn't.
Messrs. Clinton and Bush took action on those two issues in the opening days of their administrations. It isn't clear whether Mr. Obama will follow suit. He has suggested that he wants to find middle ground on abortion-related issues, and some Democrats worry about the politics of making abortion policy one of his opening moves.
As they face Democrat-controlled Washington, antiabortion activists are gearing up to fight the Freedom of Choice Act, or FOCA, which would codify Roe v. Wade into federal law. Mr. Obama said last year that he would sign the bill. Depending on how it is interpreted, the bill could overturn state laws regulating abortion, such as parental notification and mandatory waiting periods.
"Our No. 1 concern would be the FOCA bill," said Connie Mackey, senior vice president of Family Research Council Action, a conservative group that focuses on social issues. "We have to appeal directly to the American public."
The opponents of this legislation appear more eager for a debate over it than the proponents do, perhaps knowing it is a strong way to rally their supporters early in the administration.
While many abortion-rights supporters would like to see Congress pass FOCA, their advocates in Washington have concluded that there aren't enough votes in Congress and that it isn't politically smart to push such a divisive measure. A coalition of nearly 60 liberal and women's groups submitted a list of 15 requests for action in the Obama administration's first 100 days, and FOCA isn't on the list.
"We're going to be smart and strategic about our policy agenda to bring people together to make progress for women's health," said Cecile Richards, president of Planned Parenthood Federation of America. "The Freedom of Choice Act is very important...but we have a long list of things to get done that I think can address problems immediately that women are facing, that are really immediate concerns."
Among them is the "right of conscience" regulation that is expected to be published this week. It will take effect 30 days after being issued. That means that if the Bush administration issues the regulation this week, it will become final before Mr. Obama's inauguration on Jan. 20, and his administration won't be able to undo it easily.
For decades, federal law has said that doctors and nurses can't be compelled to perform abortions. The new regulation broadens that to make clear that all health-care workers may refuse to provide information, such as a referral, to patients looking for an abortion. The Department of Health and Human Services estimates the regulation would affect 584,000 hospitals, doctor's offices, pharmacies and other entities.
Advocates on both sides of the issue have interpreted the rule as also protecting workers who refuse to participate in providing birth control or other care they don't support. The rule could be blocked by Congress, or Health and Human Services could begin the laborious process of issuing a new regulation reversing course. Officials close to the transition have signaled that they intend to begin the regulatory process anew.
How the Bush Administration's Approach to Healthcare Providers' "Conscience Rights" Illustrates Its Troublingly Unilateral Exercise of Power
(By MARCI HAMILTON, Findlaw Commentary, Dec. 23, 2008)
George Will recently published an insightful column on the decision by the Bush Administration to direct funds from the Troubled Asset Relief Program (TARP) to General Motors and Chrysler. He noted that the TARP funds were not intended for such a purpose, reasoning that "if Congress had known that TARP . . . was to become an instrument for unconstrained industrial policy, it would not have been passed." His point was that the Bush Administration has aggrandized executive power, and effectively sidelined Congress, so dramatically that the constitutional separation of powers has been threatened.
Will has put his finger on a fundamental fault in the Bush Administration that threatens the foundation of the federal government. Over and over, the Administration has ignored Congress to pursue its unilateral policies. Most Americans are familiar with the Administration's repeated public declaration that it has an unreviewable power to conduct the war on terror (a claim the Supreme Court has not heeded). Meanwhile, on the domestic side, though much less-publicized, spending also has been subject to executive caprice, especially when the spending involves religious groups. The result is that public policy is whatever one man says it should be.
As I have explained in a prior column, initially the Administration waited for Congress to enact a law governing the White House's Faith-based Initiatives program, which would have permitted participating churches to discriminate on the basis of religion in the pursuit of those programs. Then, when it could not win in Congress, it just issued its own executive regulations permitting such discrimination. So much for checks and balances, not to mention the Establishment Clause.
Most recently, the executive has expanded so-called "conscience rights," which are more accurately named "conscience privileges." In so doing, the Administration trespassed three constitutional boundaries at once: the one between the federal branches of government, another between the federal government and the states, and the third between church and state.
Last week, the Department of Health and Human Services expanded the ability of healthcare providers to refuse to provide healthcare or information in circumstances involving medical care that is at odds with the provider's religious beliefs. Institutions were already under a federal prohibition on discriminating against doctors who refused to perform abortions or provide abortion referrals. This new regulation goes further, with some believing that it could insulate healthcare providers from dealing with contraception or pharmacists from having to dispense perfectly legal medications related to contraception, rape, or unwanted pregnancy. The rule works by requiring the states receiving federal funding to show that they protect the conscience privileges indicated in the federal regulation.
Congress did not pass such a law, and so the Bush Administration took it upon itself to set social policy in this delicate arena. And it did so in the face of objections coming from many members of Congress, governors, state attorneys general, and medical associations. Congress is charged with enacting the laws that govern, in no small part because it is deliberative, slow, and cumbersome. Public policy affecting so many interests -- and affecting women disproportionately -- needs to be processed through the messy, but ultimately rigorous process that is legislation. Under current Supreme Court doctrine, such a tactic is unlikely to ever be held by any court to be a separation of powers violation, but it sure smells like one.
Not only has the executive forayed into Congress's territory with its newly expanded conscience privileges, it also has usurped the states' power over standard-setting for professionals and the definition of good medical care. Some states have so-called "conscience clauses," though they can be different from one another; some do not.
As I have discussed in a previous column, I think such clauses are problematic, but setting those concerns aside, the states are far better equipped to experiment in this arena than is the federal government. There is no constitutional right to avoid the professional obligations of a doctor or pharmacist with respect to contraception and abortion, which means that this is all about drawing the appropriate public policy line. There are many patients seriously affected by conscience privileges -- from women recently raped and denied emergency contraception; to homosexual victims of AIDS, who could be denied lifesaving treatment because the healthcare provider disapproves of how the disease was contracted. If conscience clauses are upheld against constitutional attack, it is better to see how their different iterations affect public health than to impose a one-size-fits-all formula, which stifles policy development and experimentation.
Finally, the regulation crosses the boundary separating church and state. The executive is empowering the provider's religion to dictate the availability of medical treatment. Health is being determined by the religious status of the provider, rather than the neutral health needs of the patient. Doctors and pharmacists can now legally impose their religious worldviews on treatment plans, even if it means giving the patient less than what the medical universe has to contribute to their health.
This is a particularly insidious religious preference, because it ignores and suppresses the reality that there are two sets of religious beliefs in the treatment room, not just one. The regulation creates a preference for the religious beliefs of the healthcare provider over the beliefs of the patient. Yet, the medical treatment of the patient should be driven by the needs and religious beliefs of the patient, not those of the provider.
For those medical providers who do not wish to put the patient first in circumstances involving abortion, contraception, or related issues, there are many specialties they can choose that do not involve questions related to conscience clauses. But for them, religion means never having to make a painful choice. The pain of the patient is beside the point in their universe. Sadly, this is just another example of the Clinton-Bush era's aggressive push by religious entities to obtain "rights" to act without consideration of who is harmed in the process.
George Will was correct that the Bush Administration's decision to release TARP funds exhibited a dangerous aggrandizement of its power " and many other examples can be given, conscience privileges among them. In truth, eight years of executive overreaching in every arena has led to an overall weakening of the Constitution's foundation.
States File Suit to Overturn Healthcare Worker 'Conscience Rule'
(By John Gever, MedPage Today, January 19, 2009)
Eight states and several private groups have asked federal courts to throw out the Bush administration's last-minute "provider conscience" rule.
Set to take effect Tuesday, the rule would allow healthcare workers to refuse to participate in any activities they find morally objectionable.
Connecticut's attorney general, Richard Blumenthal filed a suit here late last week, joined by six other states, seeking to overturn the rule.
New York state Attorney General Andrew Cuomo brought a separate suit on behalf of his state. Still other actions were filed by the Planned Parenthood Federation of America, the National Family Planning and Reproductive Health Association, and the American Civil Liberties Union.
All the suits argue that the new rule would likely deprive patients of needed services, notably emergency contraception for rape victims.
"Countless women may be denied emergency contraception and other care -- even after rape -- without adequate information and alternatives," Blumenthal said in a statement.
"It intentionally shrouds the term abortion in new and unnecessary ambiguity, encouraging each individual to define it and deny virtually all forms of contraception, even emergency contraception to rape victims. Individual beliefs should be respected, but should not determine whether vital health care is available."
Cuomo said the regulations would also permit workers to withhold information from patients, without notifying their employers.
The rule conflicts with New York laws that require hospitals treating rape victims to provide information on all legal options, including emergency contraception.
"The Provider Conscience regulations would likely make it impossible for New York to enforce these laws and adequately protect the rights of sexual assault victims," according to a statement from Cuomo's office.
The Department of Health and Human Services announced the final rule in December after a three-month public comment process.
The new rule would apply to any employee who has a hand in the healthcare delivery process, including menial tasks such as washing medical instruments. It also lets workers decide for themselves what activities offend their consciences.
So-called provider conscience laws have been on the books for years, but they applied largely to behavior of physicians and nurses.
The incoming Obama administration can rescind the rule, but doing so would involve the same lengthy, formal rule-making process used to implement it.
Legislation has also been introduced in the House of Representatives and Senate that would stop the regulation.
The American Medical Association and other physician groups, as well as the American Hospital Association, opposed the rule when it was first proposed in August.
Blumenthal's suit was joined by attorneys general from California, Illinois, Massachusetts, Oregon, Rhode Island, and New Jersey.
Quote:States File Suit to Overturn Healthcare Worker 'Conscience Rule'
(By John Gever, MedPage Today, January 19, 2009)
The incoming Obama administration can rescind the rule, but doing so would involve the same lengthy, formal rule-making process used to implement it.
Catholic Bishops Set Pro-Life Duel With Obama
(By Mike Tighe, Newsmax.com, January 22, 2009)
The pro-life duel started quickly, with U.S. Catholic bishops and President Barack Obama crossing swords on abortion and stem-cell research issues.
On Monday, the eve of Obama’s inauguration, the U.S. Conference of Catholic Bishops unveiled a letter urging him to retain federal policies that protect healthcare workers’ conscience rights, ban funding of stem-cell research that destroys human embryos, and block foreign aid to overseas organizations promoting abortion.
Cardinal Francis George of Chicago, head of the bishops conference, said a new president can be expected "to take executive action soon to reverse current policies." Doing so on life issues could be "a terrible mistake " morally, politically, and in terms of advancing the solidarity and well-being of our nation's people," George said, quoting the letter, which went out over his name.
On Tuesday, as the final words of Obama’s oath of office echoed from the Capitol steps and across the Mall, the White House Web site unveiled lists of the new president’s priorities, including his opposition to efforts to reverse the 1973 Roe v. Wade Supreme Court decision that allowed abortion.
The bishops have sought long and hard to rescind that decision, the Jan. 22 anniversary of which prompts annual demonstrations in the nation’s capital and across the country.
Also on the abortion front, the bishops’ letter urges Obama to retain the policy the Bush administration passed last month protecting doctors, nurses, and other healthcare workers from being forced to help provide services they object to on religious or moral grounds. The policy, which opponents contend expands the rights of anti-abortion activists, allows the government to yank federal funding from any of almost 600,000 hospitals, clinics, doctor offices, and health plans that refuse to accommodate health workers who don’t want to be involved with abortions or other procedures that violate their principles.
The bishops’ Jan. 16 letter describes the policy as a "common-sense regulation, which explicitly protects the right of health professionals who favor or oppose abortion to serve the basic health needs of their communities."
The letter also encourages Obama not to upend the federal policy on stem-cell research, which the bishops note aims "to ensure that Americans are not forced to use their tax dollars to encourage expanded destruction of embryonic human beings for their stem cells."
Such research is available with other cell options or in programs that don’t use federal money, Cardinal George said. In addition, the announcement last fall of the ability to reprogram adult cells so embryonic cells aren’t needed was hailed as the “scientific breakthrough of the year.”
Contrarily, the White House Web site notes that Obama, as a U.S. senator, co-sponsored the Stem Cell Research Enhancement Act of 2007, which called for permitting “research of human embryonic stem cells derived from embryos donated (with consent) from in vitro fertilization clinics. These embryos must be deemed in excess and created based solely for the purpose of fertility treatment.”
The measure, which the Catholic Church deemed unacceptable because it believes that even embryos labeled “excess” should not be used, passed both houses of Congress. But President Bush vetoed it, as he had a similar proposal in 2005.
The third issue the bishops’ letter addressed is the so-called Mexico City Policy. That 1984 U.S. regulation bans federal family-planning funds to private organizations overseas that perform and promote abortions.
The policy has endured a back-and-forth existence. President Ronald Reagan initiated it, and President George H.W. Bush retained it. Although Bill Clinton nixed it upon becoming president, President George W. Bush reinstated it in 2001.
The policy stands at the mercy of Obama, who signaled before the inauguration that he planned to take the same tack Clinton did and negate it.
That intention prompted the bishops to warn: "A shift toward promoting abortion in developing nations would also increase distrust of the United States in these nations, whose values and culture often reject abortion, at a time when we need their trust and respect.”
For everybody's reference:
Here is letter 1.
And here is letter 2.
I find it interesting that abortion is the only field in which the bishops assert their pro-life stand.
There is no mention of the death penalty or the right to die,
although the Catholic Church is opposed to both.
Put Women's Health Back in the Picture
(Meghan Rhoad, Huffington Post, January 27, 2008)
By rescinding the Global Gag Rule, President Obama has stood up for reproductive rights, for individual dignity and autonomy, and for the simple proposition that women's health should be the central concern of women's health policy. For the last eight years, and for almost a decade during the Reagan and George H.W. Bush administrations, the Global Gag Rule withheld critical funds from organizations abroad which, using separate funds, provided legal, voluntary abortions, counseled women about abortion, or engaged in advocacy for abortion rights. The imposition of this ideologically motivated rule reduced access to basic reproductive health services and information, and undermined women's health around the world.
In addition to the Global Gag Rule, the Bush administration derailed women's health services internationally by refusing to contribute to the United Nations Population Fund, as instructed by Congress. The fund estimated the contribution would have prevented 2 million unwanted pregnancies, nearly 800,000 induced abortions, 4,700 maternal deaths, nearly 60,000 cases of serious maternal illness, and over 77,000 infant and child deaths each year. But citing rumors linking the organization to coercive abortions in China -- rumors debunked by a US government panel -- the Bush administration blocked the contribution seven years in a row.
Placing politics over women's health was the Bush model for domestic women's health policy as well. The Food and Drug Administration's interference with access to emergency contraception is a prime example. In 1999, the FDA approved prescription distribution of "Plan B," a medication used for emergency contraception. In 2003, the makers of the drug applied for permission to dispense it over-the-counter, as many women cannot see a doctor to seek a prescription within the short timeframe required for the drug to be effective. The American College of Obstetricians and Gynecologists and the government's own panel of scientific advisors overwhelmingly supported this application.
The FDA rejected the application, and delayed approval of a revised application until August 2006. Susan F. Wood, FDA assistant commissioner for women's health and director of the Office of Women's Health, resigned in protest in 2005, telling her colleagues that she could "no longer serve as staff when scientific and clinical evidence, fully evaluated and recommended for approval by the professional staff here, has been overruled." A Government Accountability Office study concluded that the consideration of the application had indeed been irregular, involving an unusual amount of input from the higher ranks.
Efforts to erase women's health considerations from women's health policy achieved a considerable victory in April 2007, when the Supreme Court for the first time upheld a federal law banning an abortion procedure that contained no exception for its use when necessary to protect a woman's health. The nationwide ban, championed by President Bush, was largely identical to a Nebraska law that the Supreme Court had declared unconstitutional in 2000 because it contained no such exception. When the federal ban came before Congress, the debate ignored concerns about its impact on women's health. As a federal court noted in 2004, "[N]one of the six physicians who testified before Congress had ever performed [the procedure]. Several did not provide abortion services at all; and one was not even an obgyn... . [T]he oral testimony before Congress was not only unbalanced, but intentionally polemic."
Given the 2000 Supreme Court precedent, the lack of a health exception in the federal ban should have sealed its constitutional fate. However, since the 2000 case, President Bush appointed two justices whose records on women's health and rights issues raised considerable concern. With a 5-4 majority, the new Court declared a health exception unnecessary, despite the wealth of evidence that the procedure is in some cases the safest option.
In mid-December, the Department of Health and Human Services (HHS) sneaked in yet another regulation jeopardizing women's health. The so-called "provider conscience rule" permits health care workers to deny patients access to services they find objectionable. They may even refuse to refer the patient to someone else who will provide the service.
By the government's own estimates, the rule will affect hundreds of thousands of clinics across the country. While the regulation is broad enough to impede access to almost any health service, it poses a particular danger to access to basic reproductive health services, including access to abortion and contraceptives. Nonetheless, HHS did not discuss the rule's impact on women's health in its proposal and dismissed thousands of comments raising women's health concerns out of hand, notwithstanding its responsibilities to review them.
President Obama marked a new day for women's health around the world with the decision to rescind the global gag rule. The importance of this single act cannot be overstated. However, after eight years of policies that ignore women's health, many more days like this will be needed to redress the harms to women's health caused by US health policy.
