New York Times Examines Controversy Over Proposed HHS Conscience Rule

Main Category: Abortion
Also Included In: Women's Health / Gynecology;  Sexual Health / STDs
Article Date: 19 Nov 2008 - 5:00 PST

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A rule proposed by HHS that would allow health care providers who receive federal grants to opt out of care based on their moral or religious beliefs "has provoked a torrent of objections," including a "strenuous protest" from the Equal Employment Opportunity Commission, which enforces job discrimination laws, the New York Times reports. According to the Times, three EEOC officials -- including its legal counsel, whom President Bush appointed -- said the proposal would upend four decades of civil rights law prohibiting job discrimination based on religion. The proposed rule states that providers could not require employees with moral or religious objections to "assist in the performance of any part of a health service program or research activity" financed by HHS. The rule also would prohibit recipients of federal money from discriminating against health care workers who refuse to take part in abortion or sterilization procedures because of "religious belief or moral convictions."

The EEOC counsel, Reed Russell, and two Democratic members of the commission, Stuart Ishimaru and Christine Griffin, said the rule is unnecessary for employee protection and potentially confusing to employers. In addition, Russell said that Title VII of the Civil Rights Act of 1964 already prohibits employment discrimination based on religion and that the courts have defined "religion" broadly to include "moral or ethical beliefs as to what is right and wrong, which are seriously held with the strength of traditional religious values." Furthermore, under the Civil Rights Act, all employers must make reasonable accommodations for an employee's religious practices, unless the employer can show that doing so would cause "undue hardship on the conduct of its business," the Times reports. In a letter commenting on the proposal, Ishimaru and Griffin said that 40 years of court decisions have carefully balanced "employees' rights to religious freedom and employers' business needs" and that the proposed rule "would throw this entire body of law into question."

According to Ishimaru and senior members of the commission staff, neither HHS nor the White House consulted with EEOC prior to issuing the proposed regulation on Aug. 21. According to a government Web site that tracks the rule-making process, the White House Office of Management and Budget both received and cleared the proposal on that day.

The Times reports that President-elect Barack Obama has said the rule would make it difficult for women to access reproductive health services such as abortion and some contraceptives. HHS Secretary Mike Leavitt said that is not the purpose of the law. Rather, he said, it would increase compliance with laws adopted since 1973 to protect health care workers. Leavitt added, "Federal law is explicit and unwavering in protecting federally funded medical practitioners from being coerced into providing treatments they find morally objectionable."

HHS officials said they plan to issue a final version of the rule within days, according to the Times. Aides and advisers to Obama said he would try to rescind it, a process that could take three to six months. Although the Bush administration in May said that new regulations should be proposed by June 1 and issued by Nov. 1, the HHS rule missed both deadlines, the Times reports. A White House directive allows the deadlines to be waived "in extraordinary circumstances," but Bush administration officials were unable to say immediately whether this case would justify an exception.

Sister Carol Keehan, president of the Catholic Health Association -- which, along with the U.S. Conference of Catholic Bishops, supports the proposal -- said that in recent years, "we have seen a variety of efforts to force Catholic and other health care providers to perform or refer for abortions or sterilizations." However, the National Association of Chain Drug Stores, the American Hospital Association, the American Medical Association, 28 senators, more than 110 representatives and the attorneys general of 13 states have called on the Bush administration to withdraw the proposed rule, the Times reports. Pharmacies said the rule would permit their employees to refuse to fill prescriptions for contraceptives and could "lead to Medicaid patients being turned away." State officials also said the rule could void state laws that require insurance plans to cover contraceptives and require hospitals to offer emergency contraception to rape survivors, according to the Times. In addition, the Ohio Health Department said the rule "could force family planning providers to hire employees who may refuse to do their jobs." Cecile Richards, president of the Planned Parenthood Federation of America, has raised similar concerns (Pear, New York Times, 11/18).

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