Association of Reproductive Health Professionals:
Bush Administration attack on women’s health/Provider Conscience Regulation

September 24, 2008

Department of Health and Human Services
Office of Public Health and Science
Attn: Brenda Destro
Hubert Humphrey Building
200 Independence Avenue SW
Room 728E
Washington, DC 20201

Re: RIN 0991-AB48

Dear Secretary Leavitt:

The Association of Reproductive Health Professionals (ARHP) urges the Department of Health and Human Services to rescind the “Proposed Rule Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law” (Fed. Reg. 73, No 166, August 26, 2008). This proposed rule threatens to significantly undermine patients’ access to critical health care services information and could negatively impact scientific research.

ARHP is a leading source for trusted medical education and information on reproductive and sexual health. ARHP is an accredited continuing medical education organization. We educate health care providers, inform consumers, and advocate for evidence-based policies that protect and promote the health and safety of the public. Our membership is composed of 11,000 member professionals who provide reproductive health services or education, conduct reproductive health research, or influence reproductive health policy.

The proposed rule puts ideology before health care—broadening the scope and reach of existing federal refusal laws beyond Congressional intent. If implemented, it would significantly expand the ability of health care providers to withhold treatment, counseling, or medical information based on their religious or moral beliefs—without any regard for the needs of patients. It would also leave the door open for entire health care organizations, including insurance plans and hospitals, to deny patients access to or even information about birth control.

As reproductive health care providers, our rights with regard to religious and moral objection are already clearly stated in law (Title VII of the Civil Rights Act), including the right to not perform abortions or sterilizations if these procedures conflict with our personal beliefs. The proposed rule would not, as its stated intent, “promote open communication within the health care industry.” In fact, it would do just the opposite by allowing health care providers and institutions to censor the information they provide to patients based on their own personal beliefs or institutional policies, without alerting the patients that they are receiving incomplete information and/or providing a referral.

As drafted, the proposed rule is certain to sow confusion and uncertainty about the rights and obligations of patients, doctors, and health care institutions throughout the U.S. health care system. In doing so, it would undermine the patient/health care provider relationship and promote mistrust of providers among patients. This would greatly impact the ability of women and their families to make confident and informed health care decisions.

Furthermore, HHS’s justification for the proposed regulation is unfounded. HHS repeatedly cited policies of the American Board of Obstetrics and Gynecology (ABOG) as the impetus for the proposed regulation. However, ABOG recently issued a public statement vehemently denying charges by HHS that ABOG has required physicians to violate their conscience rights by providing or referring patients for abortion. ABOG has also called on HHS to hold hearings to reveal, among other things, actual cases of misconduct that the rule is intended to address which, to date, HHS has failed to provide to the public.

Chief among ARHP’s concerns with the proposed regulation are the following:

• The proposed regulation could be especially problematic for women’s access to reproductive health care. Under a previously leaked draft of this rule in mid-July, HHS defined the term “abortion” to include commonly used FDA-approved methods of birth control. Rather than allay concerns over this language by including a definition of abortion consistent with the consensus within the medical community and existing federal policy, the proposed rule drops the abortion definition entirely. When asked to clarify that the regulation does not apply to contraception, HHS Secretary Leavitt stated: “This regulation does not seek to resolve any ambiguity in that area.”

• The proposed regulation threatens to fundamentally undermine the relationship between providers and patients, who will have no way of knowing which services, information, or referrals they may have been denied.

• Under the proposed rule, employees of HHS-funded entities can refuse not only to perform any given health care service, they can also deny patients access to information about or referrals for such services—without regard for the impact it will have on patients.

• While much of the rule is about reproductive health care, parts of the proposed rule apply to any health care services and research activities. The expansive definition and broad application of the rule could significantly jeopardize patients’ access to a wide range of health care services including miscarriage management, contraceptive care, HIV/AIDS care, fertility care, and mental health services.

• The rule fails to address the obligations of individuals and entities in the case of medical emergencies.

• The proposed rule could have a substantial impact on research activities at federally funded hospitals and academic, nonprofit, and corporate research institutions. In the proposed rule, a broad array of HHS-funded entities, including post-graduate physician training programs, hospitals, laboratories, universities, and think tanks, are prohibited from discriminating against any personnel who refuse to perform, or assist in, any research activity or service. Without additional guidance about how research institutions should balance the needs of their employees with the needs of their research programs, this proposed rule could adversely impact a wide range of research efforts, including federally funded stem cell research, research involving animal testing, and research intended to help protect U.S. soldiers from biological weapons.

By HHS’s own estimate, the regulation will impact 584,294 health care entities, including hospitals, private physicians’ offices, and health centers. This proposed regulation could have a debilitating effect on these health care entities and on the millions of individuals and families who rely on them for health care.

We urge the Department of Health and Human Services to withdraw this proposed regulation.

Sincerely,

Pablo Rodriguez, MD
Board Chair, Association of Reproductive Health Professionals

Linda Dominguez, RN-C, NP
Policy Committee Chair, Association of Reproductive Health Professionals

Wayne Shields
President and CEO, Association of Reproductive Health Professionals

Beth Jordan, MD
Medical Director, Association of Reproductive Health Professionals

Cc: President George W. Bush