Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, February 18, 2011

The Obama conscience regs: not disastrous, but cause for concern

I provided a short commentary on the new Obama conscience regulations for Michael Sean Winters over at the National Catholic Reporter website.


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You say: "More broadly, the Obama regulations avoid any language that explains, much less expands upon, the underlying statutes." But those who have argued in favor of keeping the Bush regulations argued that all they did was codify existing law, and that the definitions in the regulations, including "assist in the performance of," did not broaden the currently accepted notions they defined. So I don't think anyone can lament that Obama didn't expand the scope of definitions when it was claimed the Bush regulations didn't either.

Rob Stein in the Washington Post, whom you quote briefly, says in another part of his article: "The Health and Human Services Department eliminated nearly the entire rule put into effect by the administration of President George W. Bush during his final days in office that was widely interpreted as allowing such workers to opt out of a broad range of medical services, such as providing the emergency contraceptive Plan B, treating gay men and lesbians and prescribing birth control to single women." While I am not sure about the contraceptives, I don't *think* it was ever claimed by proponents of the regulations that they would allow health-care workers to opt out of treating gay men and lesbians.

The Heritage Foundation says, "[T]he regulations’ potential application outside of abortion and sterilization, which are specifically mentioned in some but not all of the underlying conscience laws, is squelched." We had an extended discussion here in which advocates of the Bush regulations said the Church Amendment had conscience protections that went beyond abortion and sterilization to cover virtually anything a person had a moral objection to. I don't see how those rights were protected by the Bush regulations but are not protected under the new regulation. (As I understand your commentary, you raise basically the same question regarding the Washington Post account.)

The Heritage Foundation also says: "HHS underscores that the conscience regulations do not apply to 'contraception,' a potential minefield given the growing array of medical devices and medicines that operate both before and after conception. Biology may not honor the sharp distinction HHS envisions here." Actually, that seems to me very misleading. As I read the regulations, all they do is make it clear that contraception is not included in the definition of abortion, something both supporters and critics of the Bush regulations were unclear on.

I can see why supporters of the Bush regulations would want to take a wait-and-see attitude to the new regulations, but since they insisted that the Bush regulations did not give people any more rights than they already have under current law, and the definitions in the Bush regulations were no broader than currently accepted definitions, I don't see how supporters can claim Obama and HHS have taken away rights that Bush tried to give them.

Posted by: David Nickol | Feb 18, 2011 6:15:46 PM

David, I agree with you that the Heritage Foundation overstates what the Obama regs provide. I also agree that both supporters and critics of the Bush regs are tending to overlook the statutory provision that is not limited to abortion/sterilization. And I probably should not have included the "much less expand upon" phrase -- I was simply trying to point out (albeit inartfully) that the Obama regs don't attempt to lend any clarity or guidance to our interpretation of the underlying statutes, which I think is a problem.

Posted by: anon | Feb 18, 2011 6:51:21 PM