By Rob Stein
Washington Post Staff Writer
Saturday, February 19, 2011; A03
After two years of struggling to balance the rights of patients against the beliefs of health-care workers, the Obama administration on Friday finally rescinded most of a federal regulation designed to protect those who refuse to provide care they find objectionable on moral or religious grounds.
The decision guts one of President George W. Bush's most controversial legacies: a rule that was widely interpreted as shielding workers who refuse to participate in a range of medical services, such as providing birth control pills, caring for gay men with AIDS and performing in-vitro fertilization for lesbians or single women.
Friday's move was seen as an important step in countering that trend, which in recent years had led pharmacists to refuse to fill prescriptions for the emergency contraceptive Plan B, doctors in California to reject a lesbian's request for infertility treatment, and an ambulance driver in Chicago to turn away a woman who needed transportation for an abortion.
"Without the rescission of this regulation, we would see tremendous discrimination against patients based on their behavior and based just on who they are," said Susan Berke Fogel of the National Health Law Program, an advocacy group based in the District. "We would see real people suffer, and more women could die."
The new rule leaves intact only long-standing "conscience" protections for doctors and nurses who do not want to perform abortions or sterilizations. It also retains the process for allowing health workers whose rights are violated to file complaints.
Calling the Bush-era rule "unclear and potentially overbroad in scope," the new, much narrower version eliminates language that had triggered alarm among reproductive health advocates, women's groups, stem cell scientists and proponents of honoring end-life-life wishes of terminally ill patients.
"We've had conscience protections on the books in some cases for more than 30 years," said Rima Cohen, the counselor for health policy to Health and Human Services Secretary Kathleen Sebelius. "When the Bush administration put these rules out, they really contained overly broad language that was confusing to people. We didn't think that was necessary."
Friday's decision was condemned by proponents of stronger protections, who say doctors, nurses, pharmacists and other workers regularly face discrimination, firing and other punitive measures because of their deeply held convictions.
"Any weakening of conscience protections opens the door that much further to discrimination against life-affirming health-care professionals and institutions," said Jonathan Imbody, vice president for government relations at the Christian Medical Association. "With many areas already facing critical shortages of professionals and institutions, this is no time to be risking the further loss of health-care access for poor patients."
The new rule, which goes into effect in 30 days, is likely to fuel the intensifying debate over abortion and related issues. House Republicans have introduced several pieces of legislation containing provisions that would replicate many of the effects of the Bush rule.
"Today, the Obama administration demonstrated exactly why we need to have strong conscience protection for health workers written into our laws," said Rep. Joe Pitts (R-Pa.), who is sponsoring the Protect Life Act, which would write more protections into the health overhaul legislation. "Without legal protection, we can certainly expect even more bureaucratic assaults on the conscience of medical workers."
The Bush regulation, which was implemented during his final days in office, would have cut off federal funding for thousands of entities, including state and local governments, hospitals, health plans and clinics, if they did not accommodate doctors, nurses, pharmacists or other employees who refused to participate in care they felt violated their personal, moral or religious beliefs. It also would have required all those entities to formally detail how they were complying.
Conservative groups said the rule was necessary because of the long failure to enforce a variety of federal laws providing protections for the "right of conscience." These laws have been on the books for decades, most notably the so-called Church and Weldon amendments.
But some argued that the regulation extended protections far beyond doctors and nurses and could essentially allow any worker in a health-care entity to refuse to participate in any services they object to, including enabling receptionists to refuse to make appointments for abortions, sterilizations, infertility treatments and other care that they find objectionable, and janitors refusing to clean up operating rooms where abortions were performed.
Soon after Obama assumed office, administration officials said they agreed the regulation was too broad and announced plans to rescind it. But officials indicated that instead of simply invalidating the rule, they would seek to replace it with a compromise. The announcement triggered more than 300,000 comments, which officials have spent months reviewing. The Federal Register notice announcing the decision cites concerns raised by both sides in the comments but concludes that most of the provisions were unnecessary and potentially problematic.
The rule will retain a provision that empowers the HHS Office of Civil Rights to investigate any complaints by workers who believe their rights under existing federal law were being violated. The office is currently investigating a complaint from a nurse who claims she was forced to perform an abortion in New York.
That office also will launch "a new awareness initiative for our grantees . . . to ensure they understand the statutory conscience protections," according to an HHS statement.
"The final conscience protection rule being issued today by HHS reaffirms the department's commitment to long-standing federal conscience statutes by maintaining and building upon provisions of the Bush administration rule that established an enforcement process for federal conscience laws, while rescinding the definitions and terms of the previous rule that caused confusion and could be taken as overly broad," according to the statement.
The decision comes as the federal Centers for Medicare and Medicaid Services is investigating a complaint that religiously affiliated hospitals are violating federal law by refusing to provide certain types of care on religious grounds.