As Secretary of the Department of Health and Human Services, Mike Leavitt has shown himself to be a devoted bureaucrat, and a man of moral conviction. Unfortunately he insists on combining the two, tailoring the nation’s business to his faith. That was about the only thing made clear yesterday by the release of his new, much anticipated, HHS regulation.

Leavitt is attempting to pass off his new regulation as protecting health care providers who, for reasons of conscience, don’t want to take part in abortion services. He told reporters, “This regulation . . . is consistent with my intent to focus squarely on the issue of conscience rights. This specifically goes to the issue of abortion and conscience." But for those schooled in the fine print, the regulation might be described as a love letter to extremists. After all, there are already no less than three laws on the books spanning 30 years that protect individuals who do not wish to take part in abortion care. (And for the record, no one wants those opposed to abortion providing abortion care, certainly not patients.) Leavitt does not claim that these laws are inadequate; he does not point to any violations of them. He seems to want us to believe that he is merely underscoring longstanding laws.
He argued,

“It is currently a violation of three separate federal laws to compel medical practitioners to perform a procedure that violates their conscience.”

In fact, the new HHS regulation far expands the jurisdiction of those decades-old laws. It reads:

“the objective that the proposed regulation would, when finalized, provide for the implementation and enforcement of federal nondiscrimination statutes protecting the conscience rights of health care entities. It also states that the statutory provisions and regulations contained in this Part are to be interpreted and implemented broadly to effectuate these protections.”

The regulation also states it will protect:

"any individual health care provider or institution from being compelled to participate in, or from being punished for refusal to participate in, a service that, for example, violates their conscience."

The regulation later defines health care program or service as:

"an activity related in any way to providing medicine, health care, or any other service related to health or wellness."(emphasis mine)

Once laws were designed to allow those who objected to abortion to abstain from participating. For Leavitt that is clearly too limiting. Leavitt’s clear intent is to allow these laws to be read more broadly, interpreted to apply to a larger set of health care services. As Leavitt puts it, to “protect federally funded medical practitioners from being coerced into providing treatments they find morally objectionable.”

The morally imaginative can concoct objections to just about any procedure, practice or medication. And the new regulation makes no suggestion about which, if any, personal objection might go too far.

Take those who believe (without scientific evidence) that contraception can cause abortion. The language of Leavitt’s new regulation appears to be a big gain. Now, it would seem health care workers need not be involved with the provision of birth control pills as long as they can say “they find morally objectionable” the use of contraception. When asked specifically by reporters whether the proposal would provide cover for those who claim contraception is abortion, Leavitt offered, “This regulation does not seek to resolve any ambiguity in that area”

Leavitt is suspiciously close-mouthed on other important questions raised (after an earlier version was leaked to the press). For instance, would laws that now require emergency room staff to offer rape victims pregnancy prevention be unenforceable in the face of “moral objections.” If read broadly, not only could rape victims be refused this care by an objecting ER staffer, they could also be denied information about where they can receive it.

The regulation also has raised fears that a pro-choice organization could not screen out pro-life job applicants. (Thank you for calling Planned Parenthood, this is Randall Terry, how may I help you?)

If Leavitt's intent is as broad as his broadly worded regulation to suggest, your right to health care – all health care – will be determined by the sensitivities of nearly every person in a white smock, and even perhaps others. Your doctor may not have a problem giving you that prescription, but will the pharmacist fill it? And, if so, will the pro-life cashier ring it up? Women have had to run an obstacle course to get reproductive health care in recent years. If we leave it to Leavitt, the number of obstacles will grow.

The Department of Health and Human Services has opened a 30-day comment period on the proposed regulation. Here are the directions to register your point of view:

You may submit electronic comments on this regulation to http://www.Regulations.gov or via e-mail to consciencecomment@hhs.gov. To submit electronic comments to www.Regulations.gov, go to the Web site and click on the link “Comment or Submission” and enter the keywords “provider conscience”. (Attachments should be in Microsoft Word, WordPerfect, or Excel; however, HHS prefers Microsoft Word.)

By regular mail. You may mail written comments (one original and two copies) to the following address only: Office of Public Health and Science, Department of Health and Human Services, Attention: Brenda Destro, Hubert H. Humphrey Building, 200 Independence Avenue, S.W., Room 728E, Washington, DC, 20201

The Centers for Disease Control is not the first place one looks to for ideas on conflict resolution but, with one issue that has divided America, it should be. A recent CDC study revealed that between 1990 and 2004 abortion rates plummeted by 50 percent in the US. The researchers suggest one common-sense policy approach is most responsible: access to contraception.

As political campaigns around the country take very different stands on the abortion issue there is no question that this argument will intensify. And the stakes couldn't be higher. The next president, if history is any measure, is likely to appoint two Supreme Court justices. Roe v Wade, the Supreme Court decision legalizing abortion nationwide, currently stands by one vote. The next election will likely decide whether Roe v Wade remains the law of the land. Against this political backdrop, another, potentially more important, reproductive rights conflict may get lost. In fact, the issue many candidates don't want voters to think about is not abortion, but contraception and the media hasn't called them on it.

Access to contraception is the only proven way to reduce unwanted pregnancy rates. It's no wonder that Americans on both sides of the abortion debate overwhelmingly support contraception. Yet few know that more and more candidates vying for their vote don't. Across the states, anti-abortion organizations have added anti-contraception activities to their agenda and expect those they help get elected to office to join in these efforts. Since this issue isn't on most voters' radar, most complacently comply.

North Kentucky Right to Life, for instance, will not endorse a candidate unless he or she states that the standard birth control pill is an abortion method (a widely held, but scientifically unfounded, belief within the anti-abortion establishment). Pro-Life Wisconsin asked legislators to ban emergency contraception from state university campuses and opposed efforts to provide rape victims with pregnancy prevention too.

Missouri Right to Life convinced its allies in the state legislature to completely discontinue the state's family planning program. Georgia Right to Life organized its favorite legislators to support a bill that would reclassify all hormonal methods of birth control as abortion. In Virginia, pro-life legislators, taking marching orders from their local anti-contraception groups, successfully defeated legislation that clarified, using scientific evidence, that contraception is not abortion.

In the last eight years, on the federal level, anti-abortion organizations have used their political leverage to undermine the nation's contraception program, Title X. They have appointed anti-contraception ideologues to oversee the program. Not surprisingly, they have under-budgeted it while the number of Americans relying on Title X has swelled. Anti-contraception groups have gummed up the gears of the FDA with like-minded ideologues and have successfully obstructed Americans from gaining greater access to the most effective contraception methods. They were the brains behind the recently leaked HHS proposal that sought to reclassify the most commonly used forms of contraception as abortion.

The questions being posed to candidates on all other critical issues facing the nation today demand cogent and solution-oriented answers. A candidate isn't considered serious about the economy without answers on how to create new jobs. Who would be labeled pro-environment without a position on fighting noxious emissions? No discussion of escalating gas prices is complete without a candidate explaining his or her position on energy alternatives too. But, oddly, no anti-abortion candidates are ever asked about their position on contraception despite the fact that their views on the matter often differ dramatically from what the public wants and what works.

As we teeter on the precipice of reversing Roe v Wade, candidates' positions on contraception and pregnancy prevention are more important than ever.

What's most frightening in light of the precariousness of the right to choose, is how closely tethered it is to the right to contraception. A candidate's position and, whenever possible, legislative record on ensuring contraceptive access should be closely examined in elections at every level.

Candidates should be asked plainly, "Do you support contraception?" And "If so, what have you done and what will you do to ensure access to it?"

In 2006, soon after South Dakota passed a near total ban on abortion, I was scheduled to debate Jim Sedlak, Vice President of the American Life League.

Before we took the stage I asked if he was disappointed by how "limited" the near total abortion ban was. He replied without irony, "Was it the perfect law? No. Would we have liked it to ban contraception? Yes." It's not that those opposed to contraception are unwilling to answer the question, it's simply that no one ever thinks to ask.

Some of the most chilling threats are whispered. This is the case in a recent blog post by Michael Leavitt, Secretary of the Department of Health and Human Services. In soothing tones, Leavitt explains on his personal blog that a recently leaked HHS proposal was not what he intended. That proposal sought to reclassify many forms of contraception as abortion, a strategy to protect those who want to deny women pregnancy prevention. Leavitt's post starts off seeming like an apology for what one hopes was a really big misunderstanding ("An early draft of the regulations found its way into public circulation before it had reached my review," he writes). But his explanation does not put to rest any concerns that the agency will offer cover to ideological extremists. Instead, Leavitt explains that what he seeks is something far more vague and all encompassing than merely reclassifying common forms of contraception as abortion. For example, he seems to say, what about all the other contraceptives that would fall outside that classification? Like the condom or diaphragm? A health care worker could have a problem with those too. His clarification suggests, "We didn't mean to leave those out." And why limit this to just abortion and contraception? (There's gotta be hundreds of medical procedures and medications that the morally imaginative could think are wrong.) Secretary Leavitt's idea appears to be that folks of conscience shouldn't have to make scientific sounding arguments claiming something causes abortion in order to deny a patient care. According to Leavitt, the health care you seek could be morally offensive for a whole host of other reasons, not just abortion. No matter the health care need, it's whatever the practitioner's conscience dictates.

Leavitt writes,

The Bush Administration has consistently supported the unborn. However, the issue I asked to be addressed in this regulation is not abortion or contraceptives, but the legal right medical practitioners have to practice according to their conscience and patients should be able to choose a doctor who has beliefs like his or hers. The Department is still contemplating if it will issue a regulation or not. If it does, it will be directly focused on the protection of practitioner conscience.

Leavitt's thinking on the matter raises more questions than it answers. Would a regulation include a measure that establishes what the agency accepts as unacceptable? Leavitt's post explained that defining what is objectionable was not his goal. His goal is too create sanctuary for anyone who hopes to use "conscience"--yet to be defined--as an excuse not do the jobs they were hired to do. The only part of the leaked HHS proposal Leavitt addressed as "not his intention" was that it limited the "right to refuse" protection. The leaked regulation applied that protection only to those who have a problem with abortion and many forms of contraception. That, to him, seems too limiting.

He doesn't offer any correction to reports that, if approved, the leaked proposal would force health centers to hire religious extremists. For instance, under the leaked proposal, it would be illegal to discriminate in hiring against those who refuse to take part in a health care service even if the service they object to is the main focus of the facility. (Thank you for calling Planned Parenthood, this is Randall Terry, how may I help you?) He doesn't debunk predictions that the leaked proposal would invalidate state laws established to protect patients from the ever changing whims and superstitions of ideologues whose main goals is to exercise their beliefs in our bodies. Leavitt does not deny that laws that now require emergency room staff to offer rape victims pregnancy prevention would be unenforceable. We are left to believe that much of the leaked proposal is perfectly fine with him.

If Leavitt's intent is as broad, and undefined, as he seems to suggest in his blog post, your right to health care will be determined by the sensitivities of nearly every person you must interact with. Your doctor may not have a problem giving you that prescription, but will the pharmacist fill it? And, if so, will the cashier ring it up? Women have to run a gauntlet to get reproductive health care in recent years. If we leave it to Leavitt, that gauntlet may be the healthcare passage for everyone.

The agenda of the right-to-life movement is falling nicely into place. This month part of that agenda was revealed in the leaked HHS proposal that defines anything that prevents a fertilized egg from implanting in the womb as an "abortifacient." And while pro-lifers claim all hormonal methods of birth control do this, the known science suggests that's not the case. What is known is that breastfeeding can help a woman prevent pregnancy just this way. Poetically, God himself is the mastermind of what ought to be, by pro-life standards, another abortifacient. And so, if the religious right is logical - a big if - it ought to target breastfeeding as well.

William Saletan, Slate columnist, only weeks ago wrote in defense of pharmacists' right to deny women birth control on religious grounds (that ground being their belief that birth control causes abortion). But given his recent satirical "Thank You" letter to Secretary Leavitt of HHS, in which he wonders if breastfeeding is next on the right to life hit list, maybe his defense of crazy pharmacists was satire too. In Saletan's recent post, he leaves no question about whether hormonal birth control can function as an abortifacient. He argues, as I do at length in my book, that there's no evidence to suggest it can. Instead what is known about hormonal birth control should quell any concerns that it could act to prevent a fertilized egg from implanting in the womb. I'm choosing to think Saletan's original posting was satire too, and we all or at least I missed the joke. After all, satirizing the religious right is not the easiest of tasks; they've mastered the art of characturing themselves.

One of the most amazing things about the recent stir caused by the leaked HHS proposal is how little, make that no, effort has been made to investigate whether the claim by the anti-abortion establishment about the mode of action of hormonal birth control is even true. In the thousands that have so far reported on the "Contraception is Abortion" proposal, not one news outlet has ventured to even ask this question: Can contraception prevent implantation?

Now, of course, for pro-choice people, this is a moot point. Even if hormonal birth control could prevent a fertilized egg from implanting in the womb, that's not abortion because pregnancy doesn't begin until implantation. To enter into this discussion is to first set aside the medical and legal definition of pregnancy and indulge the extremists. That's why this discussion never really happens. But what would we find if we did indulge them?

According to the Code of Federal Regulations, The American College of Obstetricians and Gynecologists and the National Institutes of Health, pregnancy begins when a fertilized egg implants in the womb. Until it affixes to the woman’s womb a fertilized egg can not receive nutrients from the woman’s body, which is essential for it to grow. Implantation is also the only way in which a pregnancy can be determined, there is no test that can tell when an egg has been fertilized—there is no way of knowing whether or not this has happened. Implantation is what sets in motion all the signs that pregnancy has begun. On this one point, science, medicine and the law agree: implantation is the moment at which pregnancy starts. The only dissenting group is the pro-life movement, which dismisses this definition. It, instead, would like pregnancy to start at the unknowable moment the sperm fertilizes an egg. Once sperm meets egg, any effort to prevent the egg from implanting in the womb is considered an abortion by the pro-life movement. This is one of the arguments they offer up as justification for the campaigns to keep women from using birth control. Their claim is that most birth control methods prevent fertilized eggs from implanting in the womb, which to them, though not to science, is an abortion. But even that is not true. There is no evidence that birth control methods actually do what pro-life groups claim.

Prompted, in part, by the growing efforts of anti-abortion groups to define birth control as abortion, the American Journal of Obstetrics and Gynecology in 1999 reviewed the available research on “the mechanism of action” of the contraceptive methods that so dismay pro-lifers. The authors take up the pro-life concerns directly writing, “Recently, some special interest groups have claimed, without providing any scientific rationale, that some methods of contraception may have an abortifacient effect.”

After reviewing the available literature, the authors conclude that hormonal contraceptive methods (oral contraceptives, the patch, the ring, the shot) cause a number of changes in a woman’s body which prevent pregnancy. Primarily, what they do is simply prevent ovulation. In other words, take the pill and in almost all instances a woman won’t release an egg. No egg, no chance of pregnancy. The secondary way these contraceptives function, the authors report, is by preventing fertilization. So, on the very slim chance that a woman using a hormonal method does produce an egg another mechanism of action kicks in. Hormonal contraceptives also thicken the mucus lining of women’s reproductive organs which hamper the ability of the sperm to even get to the egg. And if a rogue sperm reaches the egg, hormonal contraceptives prevent it from penetrating the egg. Specifically, they stop the shell encasing the egg from disintegrating so a sperm can’t actually do the deed of fertilization. This is what is known about how hormonal birth control works.

What gets pro-lifers so worked up is that they insist on believing that a fertilized egg can be stopped from implanting in the womb. First off, hormonal contraceptives stop fertilization. What if, through some extraordinary, unknown, and seemingly unknowable process, an egg got fertilized? The researchers consider the question and report , “No direct evidence exists showing that implantation is prevented by progestin-only methods” and “The evidence does not support the theory that the usual mechanism of action of IUDs is destruction of fertilized ova in the uterus,” say the authors. After reviewing all the research available on the modes of action of all contraceptives in question the authors summarize their report by explaining that “Even though the precise mechanism of action of modern contraceptive is not yet fully known, scientific evidence suggests the main mechanisms of action for each method. Inhibition of ovulation and effects on the cervical mucus are the primary mechanisms of the contraceptive action of hormonal methods. Evidence indicates that the primary mechanism of action of IUDs is the prevention of fertilization.”

“All of these methods, directly or indirectly, have effects on the endometrium [the lining of the uterus] that might prevent implantation of a fertilized ovum,” the researchers acknowledge. But as they quickly point out, “So far, no scientific evidence has been published supporting this possibility.” There’s just no evidence that any birth control method prevents a fertilized egg from attaching to the womb, even though that’s the basis for the pro-life claims.

What’s most striking about all this, is that, really, it should be a relief to pro-lifers. Birth control doesn’t have any effect on the egg once fertilized. The primary and secondary ways in which these methods work should be completely acceptable by the pro-life movement. In fact, though, they’ve taken just the opposite stance. Their argument usually sounds like this: We can’t really know for sure that in some cases, however rare, a fertilized egg isn’t kept from fulfilling its God decreed destiny of implanting in the womb. And the dutiful scientist, limited by the research facts, must acknowledge that though there is no evidence to suggest that such a thing happens, it’s impossible to rule it out. So there! Says the pro-lifer. It can’t be ruled out. You can’t prove a negative. It’s a little bit like deriding gravity as a hypothesis. Yes, the last ten times you dropped that spoon, it crashed down on the table. But what about the eleventh time? Or the eleven hundredth? Or the eleven millionth? There is also know way of knowing how breast feeding works as a means of birth control, which it does in the exact way hormonal methods menitioned above do, or whether fertilized eggs to breast feeding women are prevented from implanting. Applying the same exact standard here, pro-lifers would even be against the birth control method God designed. They propagate “education” campaigns, with great vehemence and assuredness, about the “abortifacient” method of birth control—all this, because while there is no evidence to show these methods actually prevent implantation of a fertilized egg, there is also no evidence to show they do not. “Insufficient evidence exists on whether cellular or biological changes in the endometrium could actually prevent implantation,” say the authors. However, their point is that it doesn’t matter. “The possibility of fertilization during combined oral contraceptive use is very small. Hence, endometrial changes are unlikely to play an important role, if any, in the observed contraceptive effectiveness of combined oral contraceptives.” Thus pro-life campaigns against birth control are based not on scientific evidence, but rather on wishful thinking. Indeed, on a slim hypothetical chance, the pro-life movement has successfully opposed legislation that would have provided millions of women access to effective birth control methods. If the science isn’t on your side, then, the pro-life side seems to believe, ignore it.

Even some pro-life physicians, sparked by the recurring actions by the pro-life movement as a whole against birth control, stepped in to offer their medical views on the concerns their fellow pro-lifers raise. In 1998, twenty-two pro-life Ob/Gyns published an analysis entitled “Birth Control Pills: Contraceptive or Abortifacients?” and four of these pro-life physicians followed up with a more detailed paper on hormonal contraceptives in general. The physicians open their statement boldly warning, “Currently the claim that hormonal contraceptives [birth control pills, implants (norplant), injectables (depoprovera)] include an abortifacient mechanism of action is being widely disseminated in the pro-life community. This theory is emerging with the assumed status of "scientific fact," and is causing significant confusion among both lay and medical pro-life people. With this confusion in the ranks comes a significant weakening of both our credibility with the general public and our effectiveness against the tide of elective abortion.” The authors explain that any effects on the uterine lining that the pro-life movement uses to support the claim that fertilized eggs are being prevented from implanting would be insignificant and has no role in the ability for a fertilized egg to implant. Fertilized eggs are able to implant in much more hostile conditions than those resulting from the mode of action from the pill. They report “The presumption that implantation of a blastocyst is thwarted by "hostile endometrium" is contradicted by the "pill pregnancies" we as physicians see. Pill company literature estimates 3 to 5 pregnancies per l00 women per year for pill users. Many of these women take the "pill" an additional month or two before finding out they are pregnant. These pregnancies generally progress with no more difficulty than non-pill pregnancies. To our knowledge, there are no studies showing that the spontaneous abortion rate in these cases is any greater than in pregnancies with a "friendly endometrium." The pro-life physicians conclude that there is no evidence to support that the contraceptive methods in question act in the ways that would be unacceptable to the pro-life individual who believes life begins at fertilization. They state it as plainly as they can, “the ‘hormonal contraception is abortifacient’ theory is not established scientific fact. It is speculation, and the discussion presented here suggests it is error” and continue “if a family, weighing all the factors affecting their own circumstances, decides to use this modality, we are confident that they are not using an abortifacient.”

Yet, their campaigns against birth control continue today with more intensity than even before this intervention from the most expert on the pro-life side. Of course, arguing over inconvenient biological truths is, in many ways, besides the point when it comes to pro-life disenchantment with birth control. Don’t be misled. This fracas is not caused by a simple scientific misunderstanding. Otherwise, they’d rush to support birth control methods that don’t ‘cause abortions’, even in their implausible view. Like the diaphragm, condom, cervical cap, and spermicides. But the pro-life forces aren’t on record anywhere in favor of methods that keep sperm and egg apart. It appears impossible to find a single instance in which a pro-life group has anything good to say about any birth control method except natural family planning—a technique most notable for its high failure rate. Even the lowly condom disturbs them.