ACLU of Utah Responds to Department of Health and Human Services Assault on Reproductive Rights
September 15, 2008
Office of Public Health and Science, Department of Health and Human Services, Hubert H. Humphrey Building,200 Independence Avenue, SW., Room 728E, Washington, DC 20201
Attention: Brenda Destro
RE: Provider Conscience Regulation
Dear Secretary Leavitt:
The ACLU of Utah (the “ACLU”) appreciates the opportunity to submit comments on the proposed rule published at 73 Fed. Reg. 50274 (the “proposed rule” or “proposed regulations”). The ACLU, which has approximately 2,500 members in Utah, has a long history of vigorously defending religious liberty, both through litigation and advocacy, and has been equally vigilant in its efforts to safeguard reproductive rights.
Based on our commitment to both religious liberty and reproductive freedom, the ACLU is uniquely positioned to address the issues raised when religious belief affects decision-making about reproductive health care. The ACLU strongly advocates solutions that balance the protection of public health, patient autonomy, and gender equality with the protection of individual religious belief and institutional religious worship. To achieve this balance, we believe it is often possible to accommodate an individual health care professional’s religiously-based refusal to provide a particular health service so long as the professional takes steps to ensure that the patient can receive that service elsewhere. However, because institutions -- such as hospitals, insurance companies and pharmacies -- serve patients and customers of all faiths and backgrounds, an institution’s wholesale refusal to provide services poses a much greater risk of harm to those who do not share in those religious beliefs and should not be allowed to trump all other important societal interests.
As explained in greater detail below, the proposed rule does not appear to strike the appropriate balance between patient access and religious liberty and could therefore seriously undermine women’s ability to obtain essential reproductive health services. The Department of Health and Human Services (the “Department”), which is “the United States government's principal agency for protecting the health of all Americans and providing essential human services, especially for those who are least able to help themselves,” has the express responsibility to further, not hinder, the public health. Accordingly, we urge the Department to withdraw the proposed rule.
I. Authorizing Health Care Providers to Refuse to Provide Information and Counseling is Harmful, Unnecessary, and Unauthorized.
The proposed rule appears to allow certain publicly funded health care entities – both individuals and institutions – that have a religious objection to performing abortions to refuse to provide women with even the most basic information and counseling about the procedure. This proposal is harmful, unnecessary, and unauthorized.
By permitting health care providers to withhold basic information and counseling from their patients, and by absolving providers of their legal and professional responsibility to the patient, the proposed rule essentially abandons patients in the face of a health care provider’s refusal. Legal and ethical principles of informed consent require physicians to inform patients about all treatment options, including those to which the physician objects or those which he or she does not provide. Yet the proposed rule seems designed to do away with these essential safeguards. Instead, as a direct result of the proposed rule, patients may never be able to access the refused health care – or even know about their right or option to do so – due to their geographic, economic, or health care plan limitations.
The proposed rule is not only harmful to women’s health, but it is also unnecessary: existing federal law already protects both individual religious liberty and access to reproductive health care services. For more than four decades, Title VII of the Civil Rights Act (“Title VII”) has required an employer to attempt to accommodate current and prospective employees’ refusals to provide any health care service on the basis of their religious beliefs, so long as the accommodation does not pose an undue hardship on the employer’s overall ability to provide health care services to its patients. Title VII thus contemplates a careful balancing of interests and gives employers leeway to take into account the effect of an employee’s refusal on pubic health and safety. At the same time, Title VII seeks the maximum possible accommodation of an individual’s religious objection.
The ACLU is concerned that the proposed regulations seek to take patients’ needs out of this equation. As described above, the regulations could completely exempt a health care provider from providing a patient with information about her condition, as well as medically accepted treatment options, suggesting for the first time that religious refusals should trump patients’ basic health care needs. Proceeding from our profound respect for both reproductive rights and religious liberty, the ACLU strongly believes that the Department should abandon any efforts to upset the existing balance.
Finally, the proposed rule is an unauthorized exercise of the Department’s rulemaking power. There is simply no evidence that Congress ever intended the Church, Coats and Weldon Amendments to allow a health care provider to ignore patient needs. If anything, the longstanding application of Title VII law demonstrates Congress’s sensitivity to the balance between individual religious belief and a patient’s ability to access the services she needs. Moreover, Congress has long required federally funded health care providers in the Title X program to provide patients with counseling about all of their options, including abortion. Thus, there is no statutory basis for the proposed rule which so blatantly disregards women’s basic reproductive health needs.
II. Authorizing Health Care Providers to Refuse to Provide Contraceptive Services Undermines Public Health Gains and is an Unprecedented Expansion of Existing Refusal Laws
The Secretary’s statements to the press suggest that the Department intends for the rule to create a new right for institutions and individuals to refuse to provide contraceptive services. Such a rule would undermine the public health and exceed the Department’s regulatory authority.
Access to safe and effective contraception is a critical component of basic health care for women. Since 1965, when the U.S. Supreme Court first protected a woman’s access to contraception, maternal and infant mortality rates have declined. In fact, the Centers for Disease Control and Prevention has declared family planning one of the ten most significant public health achievements of the 20th century. The reasons are simple: Without contraception, women have more unplanned pregnancies and are less likely to obtain adequate and timely prenatal care. Access to contraception is also essential to women’s equality and autonomy, allowing women to make educational, employment and life choices that will benefit themselves and their families.
However, if the proposed rule is extended to cover contraception it could undermine these important goals. For example, Title X – the nation’s only federally funded family planning program – has successfully provided contraceptive services to millions of Americans for almost forty years. Statistics compiled by the Guttmacher Institute confirm that without the contraceptive services provided at publicly funded clinics, there would be 46% more unintended pregnancies annually in the United States. Yet, depending on the Department’s interpretation of the regulations, Title X providers could be forced to hire employees who refuse to provide contraceptive information, counseling and services; and organizations that are unwilling to provide women with complete and accurate information and services could be able to claim scarce federal family planning dollars.
Further, the Department’s attempt to create a right to refuse contraceptive services that runs to institutions exceeds its authority under the promulgating statutes. The Church, Coats and Weldon Amendments were never intended to allow institutional health care entities to refuse to provide such services. To the extent the existing refusal statutes extend protections to institutions, these protections are plainly limited to abortion and in some instances, sterilization.
If the rule creates a new right for institutions to refuse to provide contraceptive services, it could also undermine state reproductive health laws by preventing states from enforcing important measures that have expanded access to contraception. For instance, states could be barred from enforcing laws that require health insurance policies that cover prescription drugs to also cover the full range of FDA-approved prescription contraceptive drugs and devices (“contraceptive equity” laws) and laws requiring emergency care facilities to offer emergency contraception (EC or “morning-after pill”) to rape victims who come to them for treatment (“EC in ER” laws). The refusal of institutions as a whole to abide by reproductive health mandates directly affects employees, patients, enrollees and customers of diverse backgrounds and faiths. Providing an end-run around state laws that protect women’s health runs counter to the very purpose of the Department and could have enormous public health consequences.
At a time when more and more Americans are either uninsured or struggling with the soaring costs of health care, the Department should be working to expanding access to important health services, not working to limit it.
For the reasons discussed above, we urge the Department to withdraw the proposed rule. Should the Department insist upon proceeding with the proposed rule, the agency should substantially modify its proposal in accordance with the foregoing comments.
Karen McCreary, Executive Director
William Carlson, Public Policy Advocate
Anna Brower, Development Director