‘Conscience Rule’ Creates Quandary for Hospitals

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Gloria Feldt

(WOMENSENEWS)–Now that Sen. Barack Obama is president-elect, some pro-choice activists don’t think it’s so dire that President Bush is on the brink of signing a health-policy rule that could restrict access to contraception and abortion.

Gloria Feldt, for one, sees it as the flutters of a lame duck.

“I suspect the ‘conscience rule’ will be the last gift of the Bush administration to the anti-choice groups,” said Feldt, an author, activist and the former director of the Planned Parenthood Federation of America in New York. “The good news is that President-elect Barack Obama can change it by executive order when in office.”

But for as long as it lasts, the rule–issued as a draft proposal by the Health and Human Services Department in August and under public review through late September–could complicate legal and financial life for any federally funded institution, said Adam Donfield, senior public policy associate at the New York-based Guttmacher Institute.

About 580,000 federally funded institutions–including 89 percent of all hospitals–would be affected, according to the Department of Health and Human Services.

Under the rule, any worker involved in the delivery of health care–including doctors, pharmacists, nurses, volunteers and interns–would be able to refuse to provide any medical procedure or medication based on moral, ethical or religious beliefs if they work at an institution that receives federal aid.

Given the widespread moral and religious opposition to abortion, the rule is widely seen as a gambit to restrict access to abortion or to enable medical professionals to avoid referring patients to abortion services. However, the conscience rule also would allow health care providers to refuse to provide a range of reproductive health services, including abortions but also birth control, including emergency contraception, without exception.

“It appears that one penalty under this regulation will be to lose the federal funds under a specific program,” said Donfield, adding that that could extend to all Medicare and Medicaid funds upon which hospitals critically depend. “Effectively, it means medical institutions will have to disobey their own state laws to keep their access to funding.”

Effort to Restrict Access

Many Catholic hospitals and health care providers are already legally exempt from performing abortions but still have to comply with state laws requiring that they offer rape victims emergency contraception, which prevents pregnancy if taken within 72 hours of unprotected intercourse.

Currently, 16 states require hospitals to provide emergency contraception or information about it to sexual assault victims.

Lois Uttley is director of MergerWatch Project, a New-York based national initiative dedicated to protecting patients’ rights. She says the rule reaches beyond abortion and could restrict an array of services that run astride religious teachings, including routine forms of birth control and emergency contraception, which involves a heavy dose of contraceptive hormones.

“The proposed regulation will allow providers to refuse to give women any service that they wanted,” Uttley said.

Speedily approved in August by the Office of Management and Budget and backed by the United States Conference of Catholic Bishops, the rule is opposed by a broad array of groups, including the Chicago-based American Medical Association. Over 127 Democrats in Congress co-signed a letter to the Health and Human Services Department opposing the rule during the public comment period in September. Six Republican lawmakers sent their own letter of opposition, as did attorneys general from 13 states.

On Monday the New York Times reported that three officials from the Equal Employment Opportunity Commission were opposing it on the grounds of religious discrimination.

Salvos from Activists

Throughout this week an array of pro-choice activists, including the New York-based Center for Reproductive Rights and Web sites including RH Reality Check, have fired off salvos against the rule, which carries an enforcement price tag of $44.5 million and requires federally funded hospitals to allow any of their health care delivery workers to decline to provide medical procedures they consider morally objectionable. Activists fear that exemption could be expansive, such as the right to refuse to test a patient for HIV or to provide fertility treatments to a same-sex couple.

The institutions concerned by the proposal represent “the majority of the country’s medical institutions,” Kim Gandy, president of the Washington-based National Organization for Women, told Women’s eNews.

Gandy said the consequence for rape victims could be emergency staff who refuse to tell the patient that emergency contraception exists. She said that would be particularly hard on younger women, who are often unaware of the medication and can only receive it by prescription. “Sixty percent of forcible rapes occur before the victim is 18 years old,” she said.

The rule is intended to protect the First Amendment religious rights of heath care providers, say supporters, such as the Washington-based Family Research Council; the Christian Medical Association in Virginia Beach, Va.; the American Life League in Stafford, Va.; and Concerned Women for America in Washington, D.C.

Forty-six states have passed conscience laws protecting individual health care providers; 27 have passed laws protecting the right of conscience for institutions, according to the Guttmacher Institute.

Developing Policy Framework

Three major federal statutes aimed at protecting physicians’ conscience rights were enacted in the last 35 years.

The most recent, the 2004 “Weldon Amendment,” allows the federal government to withhold funding from states that require medical professionals, clinics, hospitals, health maintenance organizations or insurance companies to provide abortions or abortion referrals.

Under the proposed rule, health workers also could refuse to refer patients to another professional more willing to provide the needed medicine or procedure, without further blame, leaving the patient in quandary.

“There is a real chance the largest impact of the rule would be on poor women,” said Celine Mizrahi, legislative counsel for the U.S. program of the New York-based Center for Reproductive Rights. Because low-income women are more likely to be uninsured or have access to reproductive health care, they are less likely to seek out another health care provider if their doctor refuses some services.

A February 2007 study published in the New England Journal of Medicine found that 86 percent of 1,144 physicians who participated in the study said they believed they should present all options to patients despite their own personal objections. Eight percent said they felt no obligation to provide information they personally objected to.

Already a large percentage of women are unaware of emergency contraception, which has been prescribed in the United States for 25 years. In August 2006 the Food and Drug Administration authorized nonprescription sales for women 18 and over.

“Many young women don’t know that Plan B is an option, and if they are not told about it, the likelihood of unwanted pregnancies and abortions will increase,” NOW’s Gandy said.

The proposed rule threatens the right to comprehensive health care of 272,350 women raped every year, said Katherine Hull, communication director of the Washington-based Rape Abuse Incest National Network.

Because so many rapes go unreported, she said the impact could be much higher.

Iulia Anghelescu is a freelance journalist in New York.

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