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Obama Administration Returns to Earlier Conscience Protections For Health Workers

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The Obama administration on Friday reversed most of the provisions of controversial federal conscience-protection regulations that were instituted by George W. Bush at the end of his presidency, thereby leaving Bush's successor with a politically difficult decision that would alienate either abortion rights supporters or opponents, or both.

The Bush administration had pushed the 11th-hour regulations through in December 2008, despite President-elect Obama's vow to rescind them; when Obama came into office, he instead said he would have the Department of Health and Human Services review the rules after considering input from all sides, and Friday's decision was the result.

The new rules -- meant to protect workers from having to perform certain medical procedures if they object on moral or religious grounds -- do away with Bush administration language that was seen as so far-reaching that it could allow health care workers to opt out of a broad range of medical services, such as providing the emergency contraceptive Plan B to rape victims, assisting on infertility treatments, treating gay men and lesbians, prescribing birth control to single women, and following end-of-life directives by patients if they conflicted with a health worker's beliefs.

The HHS statement said the previous wording "caused confusion and could be taken as overly broad." In fact, the Bush language faced court challenges in at least eight states.

Friday's move generally seemed to please pro-choice groups, and while the decision was anticipated to be handed down soon, it was an especially welcome boost for abortion-rights supporters on a day when the House voted to stop funding Planned Parenthood clinics.

The HHS decision was, as expected, a compromise that leaves in place some of the newer Bush language on exemptions regarding abortion and sterilization.

But because it drops much of the Bush language, the Obama rule was seen as a step back by social conservatives.

The Obama rule largely restores the previous policy that for decades protected health care workers and faith-based institutions like Catholic hospitals whose religious or moral convictions would prevent them from taking part in certain procedures.

It also retains a threat to withhold federal dollars from institutions that do not comply with conscience protections and it keeps the Bush-era mechanism by which those who feel their rights are being infringed can appeal to the HHS Office for Civil Rights. That makes the current regulation, at least in the abstract, stronger than anything in place at any time except the last month of the Bush administration.

"The administration strongly supports provider conscience laws that protect and support the rights of health care providers, and also recognizes and supports the rights of patients," said an HHS statement. "Strong conscience laws make it clear that health care providers cannot be compelled to perform or assist in an abortion. Many of these strong conscience laws have been in existence for more than 30 years. The rule being issued today builds on these laws by providing a clear enforcement process."

The department also announced a new "awareness initiative" for facilities receiving federal money to ensure they understand the conscience protections and the appeal process for those who believe their rights have been violated.

Conservatives had originally lobbied the Bush administration for stronger regulations because of what they said was increasing pressures on nurses, doctors, pharmacists and medical facilities -- mainly Christian -- to perform procedures and provide services they found morally objectionable. They also argued that stronger regulations were needed in light of Obama's victory and the anticipation that he would not be as vigilant in protecting the conscience rights of health care workers. And they wanted conscience protections to cover emerging issues, such as "morning after" pills and fertility treatments and the like.

The Bush regulations that were promulgated in December 2008 could have cut off federal funding for up to half a million entities, including state and local governments, hospitals, health plans and clinics, if they did not take the initiative to certify to the federal government that they would accommodate the beliefs of health care personnel.

The new regulation still ensures that no federal money can be used to "support coercive or discriminatory policies or practices in violation of federal law."

While pro-choice groups were pleased with the change -- Nancy Keenan, president of NARAL Pro-Choice America, cast it as a much-needed victory on a day that the House voted to cut funds to Planned Parenthood -- social conservatives registered varying degrees of disappointment and outrage.

"Conscience Trampled by the Regime" was the title of a column by R. Albert Mohler, Jr., president of The Southern Baptist Theological Seminary and a prominent voice among Christian conservatives, reacting to the administration's decision.

"Gone are all protections for those who object by conscience to abortifacient drugs and 'emergency' contraceptives, the treatment of gay men and lesbians, and prescriptions for birth control sought by single women," Mohler wrote. "In these cases, medical personnel have objected that their conscience and understanding of medical ethics do not allow them to facilitate acts and behaviors that are both immoral and unhealthy."

Mohler portrayed the move -- which actually leaves conscience protections stronger than they were during Bush's eight years in office -- as a signal that "the Obama administration is now ready to use the coercive power of the state to force medical personnel to perform acts they consider to be morally wrong and unhealthy for their patients." He cast it as "a tyrannical trampling of individual conscience by the power of the state" and suggested Christians should be prepared to face government sanctions for their beliefs.

Dr. J. Scott Ries, an official with the Christian Medical Association, an evangelical-oriented organization, also lamented the administration's rule changes. Ries said they would drive people of faith out of the medical profession and deprive the neediest of medical care that is often provided by religiously motivated health care workers.

The Catholic hierarchy, which had also supported the Bush rule, took a more measured view of the changes.

"The Administration's action today is cause for disappointment, but also offers reasons for hope regarding an emerging consensus in Washington on the need for clear conscience protections for health care providers," said Deirdre McQuade of the Pro-Life Secretariat of the United States Conference of Catholic Bishops.

The Catholic Health Association, which represents more than 1,200 Catholic health care systems and facilities, welcomed the regulations as vital protections for religiously-affiliated institutions like Catholic hospitals, as well as for individuals, who oppose abortion.

"In conjunction with the Catholic bishops of the United States, we were pleased to see the clarity of these federal conscience protections and were especially pleased to to see the provisions for education on conscience protection and the pathways for enforcement," Sr. Carol Keehan, head of the CHA, told PoliticsDaily.

Robert Vischer, a law professor at the University of St. Thomas Law School in Minneapolis who has written widely on conscience issues, saw the new rule as a mixed bag that would -- like the Bush regulations -- largely depend on how it was interpreted and enforced. And he said those who doubt the president's commitment on this issue are likely to be suspicious of his administration's preference to sort out problems on a case-by-case basis rather than through a single universal rule.

"There has been two years' worth of smoke surrounding federal conscience protection for health care providers, but it is difficult to discern exactly where the fire is when the debate plays out on the pages of the Code of Federal Regulations," Vischer wrote in an analysis at the website of the National Catholic Reporter.

"Apparently, the less said on the subject, the better," is how Vischer interpreted the administration's "punt" on conscience protections. "The problem, of course, is that Congress has never been especially astute at crafting user-friendly legislation. The implementing regulations, at their best, can provide a roadmap of the relevant legal rights, privileges, and obligations. Forsaking the opportunity to provide any sort of roadmap fosters doubt as to how seriously one takes the corresponding obligations."

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