The New Conscience Regulation: Gutting Protections, Laying Landmines
Following are direct quotes excerpted from the new conscience regulation, which included discussion sections of explanations and interpretations by Obama administration HHS officials. The regulation can be viewed in its entirety here. My comments in italics follow the quoted excerpts from the regulation.
Gutting the regulation
"Sections 88.2 through 88.5 of the 2008 Final Rule have been removed. Section 88.2 contains definitions of terms used in the federal health care provider conscience statutes. The preamble to the August 26, 2008 Notice of Proposed Rulemaking (73 FR 50274) and the preamble to the December 19, 2008 Final Rule (73 FR 78072) addressing these sections are neither the position of the Department, nor guidance that should be relied upon for purposes of interpreting the federal health care provider conscience protection statutes."
These few sentences in the new regulation cut the heart out of the original conscience regulation. The definitions in the original regulation were the key to making sure the law was interpreted correctly, providing concrete examples of conscience protections backed by law. Examples included definitions of what constitutes "discrimination"; what it means to "assist in the performance of abortion"; what is a “health care entity” and who within a healthcare institution “workforce” enjoys protection under the law.
"Abortion" does not include contraception
"The 2008 Final Rule did not provide that the term “abortion,” as contained in the federal health care provider conscience protection statutes, includes contraception. However, the comments reflect that the 2008 Final Rule caused significant confusion as to whether abortion also includes contraception. The provision of contraceptive services has never been defined as abortion in federal statute. There is no indication that the federal health care provider conscience statutes intended that the term “abortion” included contraception. "
This is one of the most alarming sections of the new regulation. It seems entirely possible that this language is laying a foundation for disallowing conscientious objections to prescribing or providing contraception and abortifacients. Abortion advocates have been tirelessly pushing legislation to mandate such provision and prescriptions, and this language appears to be tailored to that drive to remove ethical choices from healthcare professionals.
Read the complete analysis here