by Susan F. Wood, PhD

Recently the New York Times and RHRealityCheck reported on a leaked internal proposed regulation that calls for more and different enforcement of anti-discrimination provisions for health care providers.  The provisions are forms of conscience clauses that do not allow discrimination in hiring or promotion of health care workers who do not wish to perform abortion or sterilization (or indeed in the reverse, no discrimination against those who do perform abortions or sterilizations) in federally funded settings.

The draft regulation goes into detail outlining the history of the laws protecting the conscience of health providers and entities and then outlines the problem.  It seems that the central concern is not discrimination against those who won’t perform abortions, but that the US Department of Health and Human Services sees a real problem with requiring health professionals (and anyone in the healthcare workforce) to be involved with contraception, even if it is part of the job.  The majority of the section outlining “The Problem” concerns states that have passed laws or issued executive orders requiring pharmacies to dispense contraception, including emergency contraception, and that require hospitals to provide emergency contraception to rape victims. 

From the regulation:

In 2005, Illinois Governor Rod Blagojevich issued executive orders requiring “a retail pharmacy serving the general public [… to] dispense the contraceptive, or a suitable alternative permitted by the prescriber, to the patient or the patient’s agent without delay,” over the objection of pharmacist groups

In May 2007, Connecticut passed a law requiring all hospitals to distribute Plan B to rape victims, despite religious organizations’ objections to the abortifacient nature of the drug.
A New Jersey law requires pharmacies to fill prescriptions “despite any conflicts of employees to filling a prescription and dispensing a particular prescription drug or device due to sincerely held moral, philosophical or religious beliefs.”10

Massachusetts11 and New Mexico have passed laws similar to the laws and executive orders in Connecticut, Illinois, and New Jersey.

These are problems?  Serious enough to issue new enforceable regulations about infringing people’s conscience on abortion?

When the Administration overruled scientific staff at FDA and outside experts regarding bringing emergency contraception, it seemed clear to me that we were facing an attack on all contraception.  Given that the vast majority of people in the United States support access to safe and effective contraception, and indeed the vast majority of people of reproductive potential have used or use contraception in some form, this is not a subject we should be arguing about at the federal level.

The fact that emergency contraception was so controversial that it took over 3 years and 3 FDA commissioners before it was even partially approved for those 18 and older told us that those opposed to contraception (although a small group of people) had disproportionate influence in this government.  Despite the scientific and medical evidence, the administration still sees contraception as something to be blocked.

When Plan B was partially approved, the first thing to notice was that the sky did not fall.  Adult women have access to another form of contraception, another option if regular contraception failed or if the woman was raped.

But clearly the war on contraception is not over.  That same small group of highly influential people who want to limit access to contraception are back at work within HHS.  They’ve now worked to broaden the definition of abortion to include contraception contrary to the definitions of the American Medical Association and the American College of Obstetricians and Gynecologist. In part they base it on a poll from 2001.

A 2001 Zogby International American Values poll revealed that 49% of Americans believe that human life begins at conception. Presumably many who hold this belief think that any action that destroys human life after conception is the termination of a pregnancy, and so would be included in their definition of the term “abortion.

This strikes me as an unfounded assumption.  Most people do not think use of oral contraceptives, injectable contraceptives or an intrauterine device (IUD) are forms of abortion, even with full understanding of the possibility that sometimes the mechanism of action may involved reducing the likelihood of implantation of a fertilized egg.  Most people understand that contraception acts prior to pregnancy (as defined by implantation in the uterus) and that abortion is termination of an established pregnancy.

The leaked draft regulation also broadens who is protected by this new regulation.  Not just providers, but anyone involved in the process, from appointment schedulers to those who clean the instruments in a hospital, to the hospital itself all now can refuse to be involved with their job, with federal protection, if the facility or clinic provides contraception.

It’s a good sign that this document was released early by someone inside HHS, so that the public can get a head start in understanding what is coming next from the Administration, when it comes to limiting access to contraception.  Another good sign for scientific integrity is information that not all of the scientific and health agencies within HHS agreed (”concurred”) with issuing this proposed regulation.

Whether or not such objections within HHS will block the release of this regulation, it is important that the scientists and medical experts within the Department raise their voices, and I congratulate those who have done so.  There are consequences in research and development of new medical products and in infertility clinics if the definition of abortion reaches back to fertilization.  The scientific and medical communities need to be heard on the impact of this change, along with the voices of women and couples who stand to lose access to safe and effective contraception.

Susan F. Wood, PhD is Research Professor at George Washington University School of Public Health and Health Services, where she is part of the Project on Scientific Knowledge and Public Policy (SKAPP).  She also served as Director of the FDA Office of Women’s Health from 2000-2005 and is on the Board of Directors for Scientists and Engineers for America.

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