Democrats eye options in overturning health care ‘conscience clause’
Democratic policymakers vowing to overturn a controversial new Bush administration rule that could limit women’s reproductive health options have several tools at their disposal to do so — but party leaders aren’t revealing which they favor.
The new regulation — unveiled by the Department of Health and Human Services (HHS) earlier this month — expands the rights of some health care workers to withhold treatments and counseling services, possibly including contraception, based on their moral or religious sentiments. The White House argues that the change — known as the “right of conscience” rule — is necessary to clarify similar worker protections surrounding abortion and sterilization procedures that already exist as law. But many Democrats have joined women’s health advocates, health care providers and some state officials in blasting the rule as a sweeping expansion of existing statute that threatens women’s access to reproductive health services.
“Congress,” House Speaker Nancy Pelosi, D-Calif., said in a terse Dec. 18 statement, “will work with President-elect [Barack] Obama to reverse this rule.”
But party leaders aren’t saying how they’ll try to do it. Representing one option, Sens. Hillary Clinton, D-N.Y., and Patty Murray, D-Wash., last month introduced bill S. 20 — legislation that would simply prevent HHS from implementing the new rule.
“The Bush administration continues to pursue its extreme ideology over sound public health policies,” DeGette said in a statement earlier this month.
Congress could also simply refuse to fund the new rule, which is estimated to cost $44 million.
Or they could nix it altogether by invoking an obscure law — known as the Congressional Review Act (CRA) — which allows Congress to reject White House regulations passed within 60 legislative days of Congress’ adjournment. The law would leave Democrats several months next year to kill the rule.
An advantage of the CRA route is that the vote would be exempt from the dreaded Senate filibuster, which has snuffed dozens of Democratic bills over the past two years. The disadvantage is that the measure would have to stand alone and couldn’t be buried in another bill as a rider.
Jessica Arons, director of the Center for American Progress’ Women’s Health and Rights Program, said that invoking the CRA is not as easy as it sounds, particularly when the issue relates to abortion. Conservative-leaning Democrats might not support it, she said, and party leaders might not have the political will to bring it up to begin with.
The congressional fight could shift to the White House. The HHS under Obama could simply propose a new regulation. Obama has already criticized the rule, issuing a statement in August saying the change “complicates, rather than clarifies the law.”
“It raises troubling issues about access to basic health care for women, particularly access to contraceptives,” Obama said. “We need to restore integrity to our public health programs, not create backdoor efforts to weaken them.”
Yet the issue could be a thorny one for Obama, who ran on a platform of reaching across the aisle to Republicans. Despite his early opposition to the rule, he might not want to make an abortion-related issue one of his first battles, if only because it might threaten that message of bipartisan healing.
Health care advocates point out that crafting a new White House regulation would also be time-consuming, calling for periods of public comment that could extend the process to six months or longer. The legislative options, advocates say, could happen much more quickly.
Spokespersons in the offices of Pelosi and Senate Majority Leader Harry Reid, D-Nev., said that discussions over how to reverse the regulation are under way, but no final decision has been made.
Plenty of laws on the books — both federal and state — already protect health care workers from having to participate in abortion and sterilization procedures based on moral or religious objections. The new rule would expand those laws by forcing any health care entity receiving federal dollars to attest that employees aren’t forced to assist in practices and procedures they deem to be “morally coercive or discriminatory.”
“A trend that isolates and excludes some among various religious, cultural, and ethnic groups from participating in the delivery of health care is especially troublesome,” the rule states, “when considering current and anticipated shortages of health care professionals in many medical disciplines and regions of the country.”
Yet the rule doesn’t specifically define which practices and policies would be covered, leaving many lawmakers and women’s health advocates to fear that contraception and other family-planning services would apply. Additionally, the rule will apply to anyone who “assists in the performance of a procedure,” a group defined broadly as anyone who participates in “any activity with a reasonable connection to the objectionable procedure, including referrals, training, and other arrangements for the procedure, health service, or research activity.”
“It goes well beyond doctors and nurses to include almost anyone who works in the health care sector,” said Arons of the Center for American Progress. “It allows people to withhold relevant medical information and not inform patients about all their options.”
HHS estimates the new regulation will affect roughly 572,000 health-related facilities, including hospitals, pharmacies, laboratories and medical schools. The rule was published in the Federal Register Dec. 18 and will take effect 30 days afterward — just 48 hours before Obama takes office.
HHS did not return calls for comment.
There is also worry that the new rule will allow health care workers to take jobs in certain facilities — a family planning clinic, for example — for the sole purpose of withholding certain information, counseling services or treatments they find objectionable. Tait Sye, a spokesman for the Planned Parenthood Federation of America, pointed out that, under the new rule, it would be difficult to identify such a saboteur.
“Your boss doesn’t know,” Sye said. “The patient doesn’t know. The hospital doesn’t know … No one knows. And it creates an enormous potential for chaos.”
Meanwhile, states aren’t waiting around for Washington lawmakers to act. In Connecticut, for example, state Attorney General Richard Blumenthal is considering legal action to prevent the new regulation from taking hold. Blumenthal says he’s worried that the change could prevent victims of rape from receiving emergency contraception.
“We went through a very lengthy, painstaking, contentious process to reach our statute in Connecticut which has worked well for everyone,” Blumenthal told The Associated Press earlier this month.
Attorneys general from at least a dozen other states have joined Blumenthal in their vocal condemnation of the new rule. More recently, health officials and lawmakers in New Mexico, Iowa and Colorado are also weighing in with concerns.
The right-of-conscience rule is not the only regulation issued from the White House in recent weeks. Rules to ease restrictions on mountaintop mining, expand oil shale development and allow commercial fisheries to police their own polluting have all emerged from the White House in the final moments of President George W. Bush’s lame-duck term. Still, no others have inspired the outcry of the “right to conscience” rule.
“On its way out the door,” DeGette said, “the Bush administration has, once again, stubbornly and irresponsibly attacked Americans’ access to health care.”