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HHS physician conscience rule challenged in courts
Planned Parenthood Federation of America (PPFA) and Planned Parenthood of Connecticut were among those filing lawsuits asking the U.S. District Court for the District of Connecticut to invalidate the administrative regulation finalized in December by the U.S. Department of Health and Human Services that would allow physicians to deny services to patients based on their own religious or moral beliefs, such as abortion.
The Planned Parenthood organizations said that the "midnight regulation," pushed by the outgoing Bush administration, "poses a serious threat to women's health care by limiting the rights of patients to receive complete and accurate information and services.
"We filed this lawsuit today on behalf of the millions of women whose health care has been put in jeopardy by the Bush administration's parting shot at women's health. As a critical provider of health care information and services for women, Planned Parenthood cannot simply stand back and let this harmful regulation go into effect," said PPFA President Cecile Richards in a statement.
The complaint, the lawsuit charges, goes beyond the intent of Congress when it enacted previous conscience clauses, according to PPFA news release.
"The regulation is in conflict with other existing laws and regulations," the PPFA stated in its release. "In addition, in its rush to finalize the regulation, HHS failed to follow the appropriate regulatory steps, including failing to respond adequately to the many comments that raised significant problems with the legislation."
PPFA also reported that the Connecticut attorney general, joined by the attorneys general of California, Illinois, Massachusetts, New Jersey, Oregon, and Rhode Island filed a separate but parallel legal action challenging the regulation.
PPFA's Senior Director of litigation and law public policy, Roger Evans, JD, tells Medical Ethics Advisor that filing a lawsuit was "the one [option] that we could initiate when we did, which was after the rule was final but before the administration responsible for the rule could get out of town, so it would be clear that we were suing about what Bush had done and not what Obama had done."
The lawsuit also gives PPFA the ability to seek an injunction against the rule being enforced. As of early February, the organization had decided not to exercise that option, "while the litigation goes forward," he said.
"In addition, this is something that we could do, right," Evans says, in explaining why PPFA decided to file the lawsuit vs. pursuing other options. "It didn't require lining up 36 committee chairmen or White House aides. We could just do it."
Evans says that the Obama administration is "certainly aware of the problem — they're aware of the problem on multiple levels."
President Obama "talked about the issue as a candidate — they know there's a lawsuit," Evans says.
"So, I'm 100% confident they're aware of the situation and are considering what they think is the right thing to do," Evans tells MEA, noting that if the Obama administration takes action on this, it will be because the current administration thinks it is bad policy. But the court will only consider the question of legality of the conscience rule.
"We wanted to tee up the legality question," Evans says.
On the day that the HHS issued the final regulation, the American College of Obstetricians and Gynecologists (ACOG) in Washington, DC, issued a statement saying the rule had been approved "under the guise of "protecting" the conscience of health care providers.
However, ACOG said in the statement that the rule "is yet another reminder of the outgoing administration's implicit contempt for women's rights to accurate and complete reproductive health information and legal medical procedures."
"All patients, regardless of gender, age, ethnicity, race, religion, or sexual orientation, expect that their physicians will give them honest, complete, and unbiased information based on their specific health situations," ACOG said in its statement.
The legality question
Holly F. Lynch, JD, an attorney with Hogan & Hartson, LLP, in Washington, not only has written a book titled Conflicts of Conscience in Health Care: An Institutional Compromise, but she also addressed The President's Council on Bioethics in Washington, DC, in November 2008 on the issue of the physician conscience rule.
Lynch, who says her views do not represent those of Hogan & Hartson or the firm's clients, says one way to address the issue of conscience in health care is through a model of "doctor-patient matching, based on deeply held religious or moral beliefs." So, prior to any health care services being delivered, the potential patient would discuss the topic of religious and moral beliefs to determine if there was a "match."
"But, of course, you can only have matching when you have enough matches on both sides," Lynch tells MEA. "So, you have to have something to make sure that there are enough willing physicians such that patients can find physicians who are willing to provide the types of things that they're looking for.
"And that's the fundamental problem with this HHS rule and with various conscience clauses that are currently on the books, which is that they don't do anything to preserve access to willing physicians. They are just too one-sided," she says.
According to Lynch, there have been conscience clause statutes in place since the 1970s, and they offered "sweeping protection for physician refusal from other health care providers in the realm of abortion — but pretty much any service that you could imagine."
The new rule sets forth guidelines on how HHS is going to enforce the legislation. Lynch says that in the preamble to the final HHS rule, the agency responds to public comments made regarding the rule by saying that the new rule would not really change anything but is merely "clarifying the law."
"I think that's a bit disingenuous, because it is changing some things — it's adding definitions," she says.
For example, she suggests a law called the Church Amendment protects health care providers from "providing, or assisting in the performance of medical services." That amendment could be open to interpretation.
"What the HHS rule does is define that term — assisting in the performance — and it offers a very, very broad definition of that term," Lynch says. "It defines it as anything with a reasonable connection to the activity. And it specifically includes counseling."
White House stay
The Obama administration, according to a White House memo signed by Chief of Staff Rahm Emanuel and dated Jan. 20, 2009, has issued a 60-day "stay," Lynch says, so that the new administration "can take a look" at regulations that were scheduled to go into effect from the Bush administration.
"I'm not sure what's going on with this particular rule, but I think it would be encompassed in that sort of 60-day hold," she says.