DANGEROUS RULE AT HHS

On January 19, 2009, the day before President Bush left office, a new regulation went into effect at the Department of Health and Human Services that is in effect an assault on Americans’ right to use contraceptives.

• The controversial regulation expands existing “conscience” laws to allow nearly any health care worker to refuse for ideological reasons to provide services or information on almost the entire range of health care services – including prescriptions for contraceptives, infertility treatment, HIV/AIDS prevention and more.

• The rule affects nearly 60,000 hospitals, clinics, pharmacies and other entities funded through the Department of Health and Human Services.

• The rule contradicts American public opinion. Fully 78% of voters agree that for women to achieve equality, they must have access to birth control. These voters include 72% of regular churchgoers and 83% of swing or independent voters.

The rule became known in July 2008 when The New York Times broke the story. The proposed rule at first redefined oral contraceptives as a form of abortion, generating five months of outraged opposition from editorial boards, the medical community, advocacy groups and Members of the House and the Senate, including House Speaker Nancy Pelosi and Senator Hillary Clinton.

• HHS claimed it received more than 5,000 official comments, but groups opposing the proposed change believe more than 200,000 comments were submitted, about two-thirds of them critical.

• A revised proposal issued in August 2008 dropped the language redefining contraceptives as a form of abortion, but the final version still left the door open to abuse by ideologues.

Health care experts and legal scholars have denounced the rule as undermining women’s access to essential health care and prioritizing ideology over public health and science. They called on Congress and President-Elect Obama to act swiftly against the measure.

“The National Women’s Law Center will not rest until this rule is withdrawn,” said Marcia D. Greenberger, the center’s co-president.

The current situation:

On Jan. 15, 2009, family planning supporters filed a complaint in U.S. District Court in Hartford, CT, to overturn the regulation.
Mary Jane Gallagher, president and CEO of the National Family Planning and Reproductive Health Association (NFPRHA), argued in the complaint that the new rule unconstitutionally endangers women’s health, exceeds HHS’ authority and goes beyond the intent of Congress. It also does not address many issues opponents raised in the comment period, including questions of cost and of employers’ responsibility for enforcement.

“The Bush administration pushed through this rule as its parting shot against women’s health,” Gallagher said. “This rule threatens access to contraception and leaves patients with few protections, especially low-income and uninsured women who rely on federally funded health centers for care.”

Other critical voices:

Rep. Henry Waxman (D-CA), chair of the House Oversight and Government Reform Committee, argued last December in a letter to HHS Secretary Leavitt that the rule violates a federal policy requiring interagency coordination and review.

According to the Bureau of National Affairs article, Waxman wrote that HHS should have consulted with the Equal Employment Opportunity Commission first, and noted that EEOC comments essentially opposed the rule.”

The Bush administration has undone three decades of federal protections for both medical professionals and their patients, replaced them with a policy that seriously risks the health of millions of women, then tried to pass it off as benevolent,” said Nancy Northup, president of the Center for Reproductive Rights.

Dr. Suzanne D. Poppema, board chair of Physicians for Reproductive Choice and Health, said the regulations “are so vaguely written that a woman’s healthcare provider could refuse to tell her about birth control—let alone provide it—all under the guise of protecting religious freedom.”

“At a time when reproductive health clinics are woefully under-funded, and women in this country experience millions of unintended pregnancies each year, the administration should have been looking to increase – not restrict – women’s access to family planning services,” said Debra Ness, president of the National Partnership for Women & Families. “Voters soundly rejected the anti-choice agenda in four votes in four very diverse states in November. We hope that the new administration and Congress will say ‘no’ to these dangerous regulations as well.”

"This action comes despite an outpouring of public opposition to the rule, as well as calls for its withdrawal from a broad range of organizations and associations, including the American Medical Association, the National Association of Community Health Centers, the American Academy of Pediatrics, the American Nurses Association, and many others,” said Greenberger of the National Women’s Law Center.

Next steps:

NFPRHA is circulating a petition to President Obama and Congress urging “any and all possible actions” to overturn the rule.
Congress could act to ensure birth control is not compromised by refusing to fund enforcement of this rule, or by passing a resolution of disapproval that would in effect repeal it. Such a resolution has been promised by Reps. Louise Slaughter (D-NY) and Diana DeGette (D-CO).

President Obama could take a variety of actions to overturn this regulation.