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U.S. Gag Rule Included in Emergency Spending Bill

Monday, December 6, 2004

Language slipped into the Omnibus spending bill--expected to pass Congress today--permits medical personnel, hospitals and insurers to privately ban abortions and even to bar employees from making referrals.

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Language slipped into the Omnibus spending bill--expected to pass Congress today--permits medical personnel, hospitals and insurers to privately ban abortions and even to bar employees from making referrals.
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Rachel Laser

(WOMENSENEWS)--A behind-the-scenes maneuver by anti-choice adherents in Congress and the White House could result more scenes like the one that confronted a woman in 1998.

The woman, whose identity has been kept confidential, needed an emergency abortion when her water broke only 14 weeks into her pregnancy, but the Manchester, N.H., hospital where her obstetrician, Dr. Wayne Goldner, had privileges refused admission. The hospital said all abortions were banned under a new affiliation with a religious hospital and the woman had to travel in a taxi 80 miles to another facility.

Since then, pressure by the Attorney General of New Hampshire resulted in reversal of the hospital merger and the return of doctors' ability to provide abortions in Manchester. Across the country, states faced with the wholesale expansion of anti-abortion religious healthcare also used their own state laws to prevent summary denial of abortion care to women.

But states may be prevented from taking action in the future.

Because of 104 words slipped into a 3,500 page spending bill that rushed through Congress in the last two weeks, similar stories of abortion service denial may emerge across the country. The add-on language permits doctors, medical personnel, hospitals, insurers and health maintenance organizations to privately ban abortions with impunity, and even to prevent employees from making referrals. No reason need be given for these private bans. No exceptions are required for women who are raped, in emergency need, or facing death or disabling impairment.

In addition, federal, state and local laws that bar health providers from denying abortion services will be rendered impotent, unless a state is willing to give up its entire allotment of federal funding for health, education and labor programs
--billions of dollars per state.

The terse provision is in the $388 billion FY05 Labor, Health and Human Services and Education Appropriations Bill, also known as the Omnibus spending bill, which Congress must pass to prevent a government shutdown. The add-on circumvents the normal legislative process by forcing into law the provisions of a bill that the Senate has not passed, the Abortion Non-Discrimination Act. Championed by the U.S. Conference of Catholic Bishops and the National Right to Life Committee, the bill was passed by the House under the sponsorship of Rep. Dave Weldon, a Republican from Florida. In its new incarnation, it is called the "Weldon Amendment."

The National Right to Life Committee applauded the Bush White House for urging inclusion of the add-on amendment in a letter on Nov. 17.

"This is an outrage," Senator Barbara Boxer, a Democrat from California, said on the floor of Congress on Nov. 20. The Weldon Amendment will have "very many adverse consequences for millions and millions of women," said Boxer, causing women who have life-threatening pregnancies or need treatment in hospital emergency rooms to be denied care. "I feel for the women in this country because of the way they are treated in this bill," she said.

The bill will return to the House of Representatives for a perfunctory vote today, and then be presented for signature by President Bush. It takes effect immediately and lasts for the 2005 funding year.

Although Sen. Boxer secured an agreement to hold hearings in the Senate to repeal the provision, it cannot be removed without the agreement of the House of Representatives, which is unlikely.


Practical Impact Broad, Confusing

The practical impact of the legislation is unclear because of sweeping and ambiguous language.

"It's so murky," said Eve Gartner, an attorney with the Planned Parenthood Federation of America, located in New York City. "We don't know how it will be enforced and how the states will respond."

The amendment declares that no local, state or federal agency or program can "subject" a health care professional or health care entity to "discrimination" because it "does not provide, pay for, provide coverage for, or refer for abortions."

No definition of discrimination is provided. Already 45 states allow individual doctors to opt-out of providing abortion services, provisions that are often called "conscience clauses." In 22 states, these clauses are specifically keyed to "religious or moral" beliefs. Twenty-one states allow health care institutions to opt-out. A prior federal law, the Church Amendment, states that federal grantees are not "required" to perform abortions for religious or moral reasons. The majority of states, however, will override any opt-outs when a women's life is in danger.

But the Weldon Amendment, which applies to every state, allows health care professionals to opt-out for any reason, including in cases in which the woman's life is at risk or in which the pregnancy is a result of a rape.

The amendment "radically expands" the conscience clauses, according to the National Women's Law Center, a Washington D.C. advocacy group that refers to the provision as a "refusal clause." The right to refuse abortions is extended for the first time to insurance companies, health maintenance organizations and other "organizations." Refusals could be based on financial or any other consideration.

Several possible pictures arise of the potential impact. The Weldon amendment, for example, will prevent enforcement of a rule that requires family planning programs under the federal Title X to direct patients who want referrals to qualified abortion providers, according to the National Women's Law Center. Anti-abortion crisis pregnancy centers which refuse abortion referrals might now be eligible for Title X funds.

In eliminating the application of federal and state laws that require emergency abortion services in life-threatening cases, states such as Iowa could also be prevented from enforcing parts of its patients' bills of rights, also according to the National Women's Law Center. Iowa patients' rights for health care law allows providers to discuss treatment options with patients regardless of the health plan's position on options. Under the Weldon Amendment, health care organizations who are opposed to abortion could tell nurses and doctors in their employ that they cannot refer to abortion providers, stripping the state law of its meaning.

States could not require Medicaid managed care programs to provide abortions to low-income patients, already limited in most places to cases of rape, incest and life endangerment.

Further, because abortion itself is not defined in the amendment, pharmacists may no longer be required to fill birth control or "morning after" pill prescriptions. Some anti-abortion pharmacists claim, contrary to mainstream medicine, that some birth control and the "morning after" pill are equivalent to an abortion by potentially interfering with a fertilized egg in the hours after conception. Refusals to fill such prescriptions could be immunized from state challenge. Similarly, state laws passed in California, New Mexico and elsewhere to ensure that emergency rooms help rape survivors access the "morning after" pill could also be rendered moot.

The Weldon Amendment may also undercut the efforts of states to protect women's access to abortion when community hospitals merge or are bought out by institutions that ban abortion services. Problems have arisen in the past with Catholic healthcare systems, which enforce religious directives prohibiting abortion. In mergers with local hospitals, some states have stepped in to prevent the elimination of reproductive services in the community. "We worry that state Attorneys General could be chilled and afraid to raise complaints because they might worry that they are in danger of losing the state's money," said Rachel Laser, senior counsel at the National Women's Law Center.


Ignoring Women

"The Weldon Amendment is a direct attack on the ability of women to make decisions about abortion and other reproductive health care measures in safety and security and according to their own conscience and their own needs," said Rev. Carlton W. Veazey, president and chief executive officer of the Washington, D.C.-based Religious Coalition for Reproductive Choice. "This is a significant milestone for far-right Christian groups that are working to impose their religious beliefs on the entire American public."

Cynthia L. Cooper is an independent journalist in New York who writes frequently about reproductive rights.

For more information:

The Library of Congress--
The FY05 Labor, Health and Human Services and Education Appropriations Bill [Adobe PDF format]:
http://thomas.loc.gov/home/omni2005/h4818divf.pdf