During a discussion of abortion in the final presidential debate, Republican John McCain shocked millions of Americans with his sneering remarks and derisive air quotes when it came to the "health of the mother." Now as he prepares to leave office, President George W. Bush is making that condescension towards American women the law of the land. His eleventh hour so-called "right of conscience" regulation would allow health care workers of all stripes to refuse to provide abortion services, artificial insemination procedures and even birth control.
Following on recent Justice Department policy enabling faith-based charities receiving federal funds to discriminate in hiring, the controversial HHS rule would dramatically broaden the ability of individual health care providers to refuse "to participate in any procedure they find morally objectionable." As the Los Angeles Times detailed, the last minute regulation soon to be finalized by Health and Human Services Secretary Mike Leavitt could significantly curtail access to reproductive services for Americans:
For more than 30 years, federal law has dictated that doctors and nurses may refuse to perform abortions. The new rule would go further by making clear that healthcare workers also may refuse to provide information or advice to patients who might want an abortion.
It also seeks to cover more employees. For example, in addition to a surgeon and a nurse in an operating room, the rule would extend to "an employee whose task it is to clean the instruments," the draft rule said.
The implications for the nation's 4,800 hospitals, 234,000 doctor's offices, 58,000 pharmacies and thousands of other "entities" receiving federal funds are dramatic and draconian. As the American College of Obstetrics and Gynecology detailed, the new regulation would threaten the well-being, and in some cases the lives, of American women. In the future, these examples of withheld emergency health care services cited by ACOG would become frighteningly commonplace:
In Texas, a pharmacist rejected a rape victim's prescription for emergency contraception. In Virginia, a 42-year-old mother of two became pregnant after being refused emergency contraception. In California, a physician refused to perform artificial insemination for a lesbian couple. (In August, the California Supreme Court ruled that this refusal amounted to illegal discrimination based on sexual orientation.) And in Nebraska, a 19-year-old with a life-threatening embolism was refused an early abortion at a religiously affiliated hospital.
But while the American Medical Association and the American College of Obstetrics and Gynecology stress that a "patient's well-being must be paramount" in seeking to limit so-called "conscientious refusals," groups like the U.S. Conference of Catholic Bishops and the Christian Medical Association see the proposed rule as broadly extending well beyond abortion. As Dr. David Stevens, president of CMA, put it:
"The real battle line is the morning-after pill. This prevents the embryo from implanting. This involves moral complicity. Doctors should not be required to dispense a medication they have a moral objection to."
As Dr. Stevens suggests, the Bush administration and its allies on the religious right are now fighting by other means the war against emergency contraception like Plan B. Having finally lost in 2006 the battle to keep over-the-counter Plan B out of the hands of American women, the White House is trying another tack. And just as in the case of the FDA's stonewalling, Senators Hillary Clinton (D-NY) and Patty Murray (D-WA) plan to fight back.
Sadly, that could take some time. As President Obama prepares to take over in Washington, undoing George Bush's regulatory assault on women's reproductive rights won't be quick or easy. If the rule is issued before December 20th, it could take months for the administrative law process and public comment period to be concluded by President Obama. As a result, health care advocates led by Murray and Clinton will likely look to action by Congress early next year.
This last gasp attack on access to reproductive services is just one of the parting gifts from George W. Bush. Of course, it could have been much worse. He could have been passing the baton to President John McCain.