Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
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Friday, February 18, 2011

Obama conscience regulations

. . . have just been released.  Read them here.  (Please read them before commenting on them.)

UPDATE: An encouraging opening paragraph in light of our earlier discussion: "Neither the [Bush] 2008 final rule, nor this Final Rule, alters the statutory protections for individuals and health care entities under the federal health care provider conscience protection statutes, including the Church Amendments, Section 245 of the Public Health Service Act, and the Weldon Amendment.  These federal statutory health care provider conscience protections remain in effect."

UPDATE #2: Forgive me for live-blogging my own reading of the regulations, but uh-oh, I think I see where we're headed: "The Department supports clear and strong conscience protections for health care providers who are opposed to performing abortions," but rescinds the portions of the 2008 final rule that were "unclear and potentially overbroad in scope."

UPDATE #3: Basically, the new regulations remove the certification requirements and leave enforcement of violations of existing federal statutory conscience protections up to the HHS Office for Civil Rights.  Also, out of concern that the definitions contained in the Bush regs might lead to overbroad interpretations of the statutory protections, the new regs have deleted all definitions, offering the puzzling explanation that HHS "believes that individual investigations will provide the best means of answering questions about the application of the statutes in particular circumstances." 

HHS acknowledges receiving many comments raising concerns about Catholic hospitals being forced to close absent conscience protection, and HHS responds that "Roman Catholic hospitals will still have the same statutory protections afforded to them as have been for decades."  Elsewhere in the document, though, HHS acknowledges Connecticut's concern that the Bush rule "would prevent them from enforcing their state laws concerning access to contraception," and HHS responds that, "while there are no federal laws compelling hospitals to provide contraceptive services, the Medicaid Program does require that States provide contraceptive services to Medicaid beneficiaries," and HHS is "concerned that the breadth of the 2008 Final Rule may undermine the ability of patients to access these services, especially in areas where there are few health care providers for the patient to choose from."  As such, HHS "partially rescinds the 2008 Final Rule based on concerns expressed that it had the potential to negatively impact patient access to contraception and certain other medical services without a basis in federal conscience protection statutes."

My quick take is that the Obama regs provide a means of enforcement with the Office for Civil Rights, though it remains to be seen how interested the OCR will be in bringing actions against offending entities.  The regs also remove any other substantive provision that interprets (or could potentially be read as expanding upon) the statutory protections.  To the extent that there is uncertainty about the actual requirements of the relevant statutes, these regs disavow any attempt to lend greater clarity beyond the issue of abortion.


Vischer, Rob | Permalink

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The Final Rule scraps the definitional section in the Bush 2008 final rule because HHS agreed with the commenters who argued that the definitions of such terms as "contraception" and "sterilization" contained ambiguities. Instead of drafting new definitions or clarifying the 2008 defintions, the HHS has decided on refinement of terms by way of the new administrative enforcement mechanism set forth in the Final Rule. While there may be some confusion in the short term about some statutory/regulatory terms, I think punting construction of key terms to the admin adjudication forum is the better way to go because any definitions issued as part of the Final Rule would likely meet resistance by one group or another with an interest in conscience protections.

Posted by: Bill Collier | Feb 18, 2011 12:53:28 PM

Bill, the Bush regs didn't define abortion, contraception, or sterilization (unless I'm missing something). The breadth of the Bush regs is a consequence of 42 USC 300a-7(d), isn't it? That provision extends conscience protection beyond abortion, and the Bush regs didn't add anything to that. I'm having a hard time seeing what would've been problematic to the Obama HHS about the Bush regs' definitions, other than perhaps "assist in the performance" being defined to include any "reasonable connection to the objectionable procedure" with an example given of the person cleaning instruments used in the procedure.

Posted by: rob vischer | Feb 18, 2011 1:06:59 PM

Actually, the original draft of the Bush regulations defined abortion as "any of the various procedures -- including the prescription and administration of any drug or the performance of any procedure or any other action -- that results in the termination of the life of a human being in utero between conception and natural birth, whether before or after implantation." That definition did not make it into the final regulations.

Posted by: David Nickol | Feb 18, 2011 1:55:26 PM

I see your point, Rob, and I should have been clearer and more precise in making my point. The 2008 Final Rule (and the regs at 42 USC Part 88) didn't define abortion, contraception, etc., but in modifying other definitions (e.g., individual, health care entity, assist in the performance) already found in the Church Amendment, HHS commented on the feedback the agency had received about its proposed definitional modifications. The HHS specifically chose not to include a definition of "abortion," despite the urging of some commenters that a definition of "abortion" in the federal health care provider conscience statutes was needed to make clear that "abortion" excludes contraceptive services.


(See page 23ff. The highlighting in the document is not mine.)

In the Obama Final Rule you linked us to, the HHS notes that, on the basis of numerous comments to the Bush Final Rule, the agency's definitional efforts (and non-definitional efforts) in the Bush Final Rule may have been more confusing than helpful, especially the agency's reluctance to more clearly define "abortion." Numerous comments to the Bush Final Rule questioned whether that rule expanded the scope of the underlying provider conscience statutes by suggesting that "abortion" includes contraception. In the Obama Final Rule, HHS abandoned its definitional efforts because "comments received illustrated that there is significant division over whether the definitions provided by the 2008 Final Rule are in line with the longstanding federal health care provider conscience statutes."

Posted by: Bill Collier | Feb 18, 2011 2:44:53 PM

OH..I see...In some corners of the United States, a conscience clause exists that gives medical care workers the legal right to opt out of performing some treatments that clash with their spiritual values. Critics of the terms believe that a doctor cannot refuse to treat a patient if that treatment can conserve a life. The Hippocratic Oath compels medical professionals to treat patients fairly and without bias. Now several of those workers won't be able to site the conscience clause, reports the Washington Post. Obama's reworking of the clause strips out several of the protections written in by the last Bush administration.

Posted by: rachelleB | Feb 25, 2011 4:52:50 AM