By Melissa Dizon, Albany Government Law Review Class of 2011
On February 18, 2011 the United States Department of Health and Human Services announced its new rule regarding health care and conscience clauses. The new rule replaces a controversial rule that the Bush Administration issued in 2008, during George W. Bush’s last days in office. The new rule ensures that the law protects health care providers who object to performing or assisting an abortion, while eliminating confusion of the previous rule that the definition of abortion also included contraception. This is undoubtedly a point for the pro-choice faction, but one can imagine it will spark the conscience clause debate anew.
In December 2008 the Bush Administration proposed last-minute regulations that allowed hospitals to refuse emergency contraception to sexual assault victims and to deny other women’s health services under the “Provider Conscience” rules. The rule, effective as of January 19, 2009, required healthcare entities, that receive federal funds from the Department of Health and Human Services (HHS), to certify that they do not have “coercive or discriminatory policies or practice” in place that may pressure health care workers into participating in procedures, such as abortion, that the health care workers consider to be contrary to their religious or moral beliefs. This regulation was problematic because it upset the balance between job obligations and personal convictions, a balance that is central to strengthening our healthcare system.
The rule was especially troublesome in the state of New York, as its current laws offer some of the strongest protections in the nation for women and victims of sexual assault. In 2003 the state legislature found that “the victimization of women through rape is compounded by the possibility that the rape survivor may suffer an unwanted pregnancy by the rapist” and that “access to emergency contraception and timely counseling are simple, basic measures that can prevent this additional victimization . . . . Medical research strongly indicates that the sooner emergency contraception is administered, the better the chance of preventing unintended pregnancy.” The question was then posed, how could the Bush-issued “Provider Conscience” regulations possibly allow New York to enforce its own laws and adequately protect the rights of sexual assault victims. It was a question complicated by the fact that there are constitutional First Amendment guarantees that prohibit discrimination against healthcare providers and entities that refuse to perform a health service because it goes against religious and moral convictions. There is also established provider conscience legislation that shields these providers from discrimination and liability. On the other side are the duties that define the healthcare profession, particularly the duties that need to be acted upon when faced with a patient in medical need. Nonetheless, underlying this quagmire of constitutional implications and ethical dilemmas, healthcare professionals have a duty to abide by the rules that define the profession they have entered into, and therefore it is reasonable to expect that they provide their services and skills to the public and not just to members of the public that share their morality.
- A. The Development of Provider Conscience Legislation
Conscience clauses began to appear across the nation after the Supreme Court’s
1973 decision in Roe v. Wade, which recognized a constitutional right to privacy that encompasses a woman’s right to terminate her pregnancy. In the wake of Roe, health care professionals whose religious or moral beliefs upheld the concept of the “sanctity of life” were vulnerable to a ruling that could possibly force them to perform a procedure that they would find morally repugnant. Thus, the federal government passed the Church Amendment in 1973, which established that recipients of federal funds with moral or religious objections to sterilization or abortion could not be required to perform them. It also prohibited federally funded institutions from discriminating against health care professionals who refuse to perform or assist in an abortion or sterilization.
Decades later, Congress provided another conscience exemption in the form of the 1997 Coats Amendment, encompassed within Public Health Service Act § 245, prohibiting the federal government and any state or local government receiving federal financial assistance from discriminating against any health care entity on the basis that the entity “refuses to receive training in the performance of abortions, to require or provide such training, to perform such abortions, or to provide referrals for such training or such abortions.” More recently, in 2004 the Weldon Amendment was promulgated. The Amendment specifically pertained to abortion and prohibited local, state, and federal authorities from requiring any institution or health care professional to provide or pay for abortions or supply abortion-related referrals. It should be noted that these federal regulations allow health care entities to refuse to perform a religiously or morally repugnant procedure, as well as refuse to refer a patient to another provider who would be willing to perform the procedure.
- B. The Bush Administration’s Parting Gift: Broadly Ensuring that HHS Funds Do Not Support Coercive or Discriminatory Policies or Practices
The HHS rule that the Obama Administration finally rescinded offered even broader protections to healthcare entities and professionals. Former HHS Secretary, Mark Leavitt, explained that the old rule was intended to protect the “legal right of [health care professionals] to practice according to their conscience.” He further stated that “[d]octors and other health care providers should not be forced to choose between good professional standing and violating their conscience. Freedom of expression and action should not be surrendered upon the issuance of a health care degree.” The rule was intended to:
“[c]larify that non-discrimination protections apply to institutional health care providers as well as to individual employees working for recipients of certain funds from HHS; [r]equire recipients of certain HHS funds to certify their compliance with laws protecting provider conscience rights; [d]esignate the HHS Office for Civil Rights as the entity to receive complaints of discrimination addressed by the existing statutes and the proposed regulation; and [c]harge HHS officials to work with any state or local government or entity that may be in violation of existing statutes and the proposed regulation to encourage voluntary steps to bring that government or entity into compliance with the law.”
Non-compliance resulted in penalty: “[i]f, despite the Department’s efforts, compliance is not achieved, HHS officials will consider all legal options, including termination of funding and the return of funds paid out in violation of the nondiscrimination provisions.”
Section 88.1 of the old rule indicates that the regulation was meant to be “interpreted and implemented broadly to effectuate [the] protections” that it is offering to a large class of employees in the health care industry. It covered anyone with a “reasonable connection” to a procedure that the federal healthcare conscience protection statute addresses: “[a]ssist in the [p]erformance means to participate in any activity with a reasonable connection to a procedure, health service or health service program . . . [as] long as the individual involved is a part of the workforce of a Department-funded entity. This includes counseling, referral, training, and other arrangements for the procedure, health service, or research activity.” This expanded all of the previously enacted federal conscience clause legislation, which were applicable only to health care entities and providers that were directly linked to the performance of or assistance with abortion or sterilization. These regulations were quickly challenged in federal court by several states and medical organizations, in part over concern that its overly broad wording also could be used to refuse birth control, family planning services and a variety of other services.
Then-Attorney General Andrew Cuomo filed a suit on behalf of New Yorkagainst the Department of Health and Human Services. In his complaint for declaratory and injunctive relief, he alleged that:
“Laws allowing doctors to refuse to perform abortions have been on the books for years. Many states, including New York, have existing laws that carefully balance the healthcare rights . . . of all citizens with the right of healthcare providers to abstain from performing [procedures that] they find objectionable for moral, ethical, religious or other reasons. Under the guise of implementing federal laws that allow doctors to refuse to perform abortions, the Regulation, as written, could permit anyone working or volunteering with a health care entity to refuse to provide services other than abortion, including refusing even to advise rape victims of their legal right to emergency contraception services to protect their health in a timely manner.”
New York’s public health laws require hospitals treating rape victims to provide information on all legal options, including emergency contraception: “Every hospital providing emergency treatment to a rape survivor shall promptly provide such survivor with written information . . . relating to emergency contraception; orally inform such survivor of the availability of emergency contraception, its use and efficacy; and provide emergency contraception to such survivor.” New York law already specifically protects the conscience rights of medical providers, providing that if they have to refuse to perform or assist in abortions, they can, as long as they “[file] a prior written refusal setting forth the reasons therefore with the appropriate and responsible hospital, person, firm, corporation or association, and no such hospital, person, firm, corporation or association shall discriminate against the person so refusing to act.” The old rule did not contain a provision that would require a provider to submit a prior written refusal to perform procedures that are objectionable to him. The rule allowed a provider to, of his own volition, directly and plainly refuse to administer a required treatment to a patient. Although there were already laws in states such asNew York which protect providers’ conscience, they were carefully balanced with the needs of a patient. Bush’s rule clearly upset this balance. Even if a state law required providers who object to certain services to provide a patient with a referral for that service, the old rule indicated that it would not enforce such a referral requirement without violating certain provisions of the Coats and Weldon Amendments.
Conclusion: Finally Regaining the Balance Lost
The old conscience clause rule gave leave to interpret health services, particularly abortion procedures, broadly. This is notwithstanding the fact that federal healthcare organizations such as the National Institute of Health (NIH) have specifically defined abortion in two ways: those that are surgical, and those that are medical. The NIH defines a medical abortion as the use of certain medications to end a pregnancy. Drugs that are used for such a procedure, such as the RU-45 “abortion pill”, help remove the fetus and placenta from the mother’s womb. A surgical abortion, on the other hand, uses a vacuum to remove the fetus and related material from a woman’s uterus. Emergency contraception is not the same as the “abortion pill.” Rather, it is a method used to prevent pregnancy in women who have had unprotected sexual intercourse. It may also be used following other different situations, including but not limited to rape, unplanned acts of sexual intercourse, or in the event that another method of birth control fails. The bottom line is that, according to the NIH, there is a difference between a procedure or drug that prevents pregnancy and one that terminates a pregnancy.
However, there are many that believe that emergency contraceptive drugs are indeed abortifacient, meaning they do terminate an existing pregnancy. Those adhering to this belief are of the mindset that life begins at the moment of conception. Therefore, a woman seeking emergency contraceptive services, in their mind, could have been ovulating, which would mean her egg was fertilized, resulting in the beginning of a budding human life. This perspective holds to the reasoning that, in taking emergency contraception, the hormones that are released into a woman’s reproductive system are of the magnitude to not only prevent a pregnancy, but to also disrupt a potential life from continuing its natural human life cycle, which equates to abortion.
The question of whether or not emergency contraceptives induce abortion will depend on who one talks to. There seem to be multiple answers and a great deal of uncertainty, all rooted in the fact that people have differing definitions of when pregnancy begins. The old rule fueled this uncertainty, and failed to provide clear guidelines. It opened the door for doctors, nurses, insurance plans, hospitals, and nearly any other employee in a health care setting to deny women access to most forms of birth control, including emergency contraception. The rule would have had an enormous impact on hundreds of thousands of hospitals, health centers, and doctors’ offices, laboratories, medical schools, pharmacies and the patients they serve because of its application to any health service. With the issuance of a new regulation that clearly states that contraceptives do not equate with abortions: “There is no indication that the federal health care provider conscience statutes intended that the term ‘abortion’ included contraception.” This reaffirms the principles of protecting the doctor-patient relationship by repealing the most onerous and intrusive parts of Bush’s last-minute conscientious refusal rule.
 U.S. Dep’t of Health & Human Services, Statement from the Department of Health and Human Services on the Regulation for the Enforcement of Federal Health Care Conscience Protections, available at http://www.hhs.gov/news/press/2011pres/02/20110218a.html [hereinafter HHS News Release]; 76 Fed. Reg. 9668-02 (2011) (Feb. 23, 2011) (to be codified at 45 C.F.R. pt. 88).
 Id.; 45 C.F.R. § 88 (2006).
 HHS News Release, supra note 1.
See 2003 N.Y. Sess. Law ch. 625, § 1 (McKinney ). See N.Y. Pub. Health § 2805-p (McKinney 2011).
See 2003 N.Y. Sess. Law ch. 625, § 1.
Attorney General Cuomo Sues Bush Over 11th-Hour Regulations that Threaten Viral Health Services for Sexual Assault Victims, NY Women, N.Y.S. Office of the Attorney General (Jan. 16, 2009), http://www.ag.ny.gov/media_center/2009/jan/jan16c_09.html.
 Roe v. Wade, 410 U.S. 113 (1973).
42 U.S.C. § 300a-7 (2006); Tom C. Lin, Treating an Unhealthy Conscience: A Prescription for Medical Conscience Clauses, 31 Vt. L. Rev. 105, 107–08 (2006); see also News Release, U.S. Dep’t of Health & Human Services (HHS), Regulation Proposed to Help Protect Health Care Providers From Discrimination (Aug. 21, 2008), available at http://www.hhs.gov/news/press/2008pres/08/20080821a.html.
42 U.S.C. § 300a-7 (2006).
 42 U.S.C. § 238n (2006); see also U.S. Dep’t of Health & Human Services, supra note 9.
 Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, Div G. § 508(d), 121 Stat. 1844, 2209 (2008); see also U.S. Dep’t of Health & Human Services, supra note 9.
 U.S. Dep’t of Health & Human Services, supra note 9.
 45 C.F.R. § 88.1 (2008).
45 C.F.R. § 88.2 (2008); Kimberly A. Parr, Note, Beyond Politics: A Social & Cultural History of Federal Healthcare Conscience Protections, 35 Am. J.L. & Med. 620, 643-44 (2009).
 See 42 U.S.C. § 300a-7 (2006); 42 U.S.C. § 238n (2006); Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, Div G. § 508(d), 121 Stat. 1844, 2209 (2008). See also Rohit Talwar, The Dangers of Broad Federal Conscience Law, 21 No. 6 Health Law 23, 26 (2009); Parr, supra note 18, at 644.
 See State of Connecticut Attorney General’s Office, Attorney General Leads Multi-State Lawsuit Against Federal Rule Jeopardizing Women’s Health Rights, Including Birth Control Access (Jan. 15, 2009), available at http://www.ct.gov/ag/cwp/view.asp?Q=431972&A=3673; Rob Stein, Lawsuits Filed Over Rule That Lets Health Workers Deny Care: Regulation to Protect ‘Conscience Rights’ Called Too Broad, Wash. Post, Jan. 16, 2009.
 N.Y.S. Office of the Attorney General, supra note 7.
 Complaint at *3, State of Connecticut et. al. v. United States, 3:09 CV 54 (RNC) (D. CT. 2009).
N.Y. Pub. Health Law § 2805-p (McKinney 2006).
 U.S. National Library of Medicine, Abortion—Medical, http://www.nlm.nih.gov/medlineplus/ency/article/007382.htm (last visited Apr. 20, 2011).
 U.S. National Library of Medicine, Abortion—Surgical, http://www.nlm.nih.gov/medlineplus/ency/article/002912.htm (last visited Apr. 20, 2011).
 U.S. National Library of Medicine, Emergency Contraception, http://www.nlm.nih.gov/medlineplus/ency/article/007014.htm (last visited Apr. 20, 2011).
 See Maria Luisa di Pietro, As Fruits of the Same Tree: The Abortifacient Nature of the So-Called Morning After Pill, Institute of Bioethics, Catholic University of the Sacred Heart (2009), available at http://www.nlm.nih.gov/medlineplus/ency/article/007014.htm .
 76 Fed. Reg. 9668-02 (2011) (Feb. 23, 2011) (to be codified at 45 C.F.R. pt. 88).