The "Conscience Rule" Regulation Dispute

     Under a series of federal laws (the Church Amendments, the Danforth Amendment, and the Weldon Amendment) doctors and other health care workers who refuse to perform sterilizations or abortions may not be fired or otherwise discriminated against by their employers, and heath care institutions that refuse to perform sterilizations or abortions may not be denied funding by any government agency.  Collectively, these laws are known as the "conscience rule."  On January 20, 2009, President Bush's last day in office, the Department of Health and Human Services issued a regulation implementing the "conscience rule."  The Obama administration recently announced its intention to rescind the regulation, and yesterday Dr. David Stevens, head of the Christian Medical Association, expressed his opposition to repeal of the regulation.

     What is this dispute about?

     In my opinion, as a practical matter there isn't much of a dispute.  The real problem is that neither side trusts the other.

     Dr. Stevens is worried that if the regulation is rescinded it will be "open season on health care professionals of conscience," and that doctors and hospitals that refuse to perform abortions will be discriminated against.  On the other side, organizations such as the National Family Planning and Reproductive Health Association are worried that the Bush regulation was intended to extend the conscience rule to contraceptive services, and they have sued to block the regulation in part because it might be interpreted to cover contraception as well as abortion.

     The main problem with Bush's regulation is that it requires hospitals and family planning agencies to certify that they are in compliance with federal law but it does not define certain key terms such as "abortion" or "discrimination."  For example, is the insertion of an IUD, which does not prevent fertilization but which does prevent implantation, an "abortion" within the meaning of the conscience rule?  May hospital pharmacists or family planning workers refuse to assist patients in obtaining contraception?  An early draft of the regulation defined certain forms of contraception as abortion, but this language was omitted from the final regulation which contains no definition of abortion.  Similarly, the Bush regulation does not define "discrimination."  If an employee who refuses to make referrals for abortions is transferred to another job within the organization where that employee would not face that moral dilemma is that "discrimination"?  It would be difficult for an agency to certify that it is in compliance with federal law if it is unclear what the federal law requires.

     I don't think that repeal of the Bush regulation will make it "open season" on health care professionals who refuse to perform abortions, as supporters of the regulation believe.  The federal statutes embodying the conscience rule will still be in effect and will continue to protect their rights.  I also don't think that the Bush regulation extends the conscience rule to cover contraception, as opponents of the regulation believe.  However, it would be in everybody's interests to clarify precisely what federal law requires, and the Bush regulation is hopelessly ambiguous.  There are other technical problems with the regulation probably resulting from the haste with which it was adopted.  On the whole, I believe that the Bush regulation should be rescinded as the Obama administration plans.  However, I also think that the administration should adopt a new regulation clarifying everyone's rights and responsibilities under the law.