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Rule Shields Health Workers Who Withhold Care Based on Beliefs

By Rob Stein
Washington Post Staff Writer
Friday, December 19, 2008

The Bush administration yesterday granted sweeping new protections to health workers who refuse to provide care that violates their personal beliefs, setting off an intense battle over opponents' plans to try to repeal the measure.

Critics began consulting with the incoming Obama administration on strategies to reverse the regulation as quickly as possible while supporters started mobilizing to fight such efforts.

The far-reaching regulation cuts off federal funding for any state or local government, hospital, health plan, clinic or other entity that does not accommodate doctors, nurses, pharmacists and other employees who refuse to participate in care they find ethically, morally or religiously objectionable. It was sought by conservative groups, abortion opponents and others to safeguard workers from being fired, disciplined or penalized in other ways.

But women's health advocates, family planning proponents, abortion rights activists and some members of Congress condemned the regulation, saying it will be a major obstacle to providing many health services, including abortion, family planning, infertility treatment, and end-of-life care, as well as possibly a wide range of scientific research.

The 127-page rule, which was issued just in time to take effect in the 30 days before the change in administrations, is the latest that the administration is implementing before President Bush's term ends.

The "right of conscience" rule could become one of the first contentious tests for the Obama administration, which could seek to reverse the rule either by initiating a lengthy new rulemaking process or by supporting legislation already pending in Congress.

President-elect Barack Obama's transition team did not specifically address the rule yesterday, but spokesman Nick Shapiro issued a statement that said Obama "will review all eleventh-hour regulations and will address them once he is president." Obama criticized the regulation when it was proposed last summer.

Sen. Patty Murray (D-Wash.), who with Sen. Hillary Rodham Clinton (D-N.Y.) introduced a bill last month to repeal the rule, said: "We will not allow this rule to stand. It threatens the health and well-being of women and the rights of patients across the country." Similar legislation is pending in the House.

Donna Crane, policy director for NARAL Pro-Choice America, noted that Congress has a limited window to act. "Right now our efforts are focused on the executive branch."

The regulation's supporters, including some members of Congress, vowed to defend it.

"We will marshal a nonpartisan, grass-roots coalition to prevent any weakening of current conscience protections," said Tony Perkins, president of the Family Research Council, a socially conservative group that opposes abortion.

David Stevens of the Christian Medical Association said: "We will do all in our power to ensure that health-care professionals have the same civil rights enjoyed by all Americans. These regulations are needed, do not change the law but simply stop religious discrimination."

The rule comes at a time of increasingly frequent reports of conflicts between health-care workers and patients. Pharmacists have turned away women seeking birth control and morning-after emergency contraception pills. Fertility doctors have refused to help unmarried women and lesbians conceive by artificial insemination. Catholic hospitals refuse to provide the morning-after pill and to perform abortions and sterilizations.

Experts predict the issue could escalate sharply if a broad array of therapies becomes available using embryonic stem cells, which are controversial because they are obtained by destroying very early embryos. Obama is poised to lift the Bush administration's restrictions on federal funding of embryonic stem cell research.

"Doctors and other health-care providers should not be forced to choose between good professional standing and violating their conscience," said Mike Leavitt, secretary of the Department Health and Human Services, which issued the regulation.

The rule, which will cost more than $44 million to implement, gives more than 584,000 health-care organizations until Oct. 1 to provide written certification of their compliance. Those that do not comply face having their funding cut off or being required to return funding they have received.

Officials at hospitals and clinics predicted the regulation will cause widespread disruptions, forcing family planning centers and fertility clinics, for example, to hire employees even if they oppose abortions or in vitro fertilization procedures that can destroy embryos.

"It is going to cause chaos among providers across the country," said Cecile Richards of the Planned Parenthood Federation of America.

The regulation could also make it difficult for states to enforce laws such as those requiring hospitals to offer rape victims the morning-after pill, experts said.

Because of such concerns, 28 senators, more than 110 House members and more than a dozen state attorneys general opposed the regulation, along with medical organizations including the American Medical Association, the American College of Obstetricians and Gynecologists and the American Hospital Association.

The rule is supported by such groups as Concerned Women for America and the Catholic Health Association, which represents Catholic hospitals.

"We urge the incoming Congress and administration to honor this much-needed implementation of long-standing laws," said Deirdre A. McQuade of the U.S. Conference of Catholic Bishops. "Individuals and institutions committed to healing should not be required to take the very human life that they are dedicated to protecting."

The language of the rule stresses that it is designed to make sure federal laws on the books since the 1970s are enforced, and that nothing in the regulation will prevent an organization from providing any type of care.

Leavitt initially said the regulation was intended primarily to protect workers who object to abortion. The final rule, however, affects a far broader array of services, protecting workers who do not wish to dispense birth control pills, Plan B emergency contraceptives and other forms of contraception they consider equivalent to abortion, or to inform patients where they might obtain such care. The rule could also protect workers who object to certain types of end-of-life care or to withdrawing care, or even perhaps providing care to unmarried people or gay men and lesbians.

While primarily aimed at doctors and nurses, it offers protection to anyone with a "reasonable" connection to objectionable care -- including ultrasound technicians, nurses aides, secretaries and even janitors who might have to clean equipment used in procedures they deem objectionable.

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