On March 6, 2009, the Obama administration took a significant step toward ensuring access to essential healthcare services and information by announcing a proposal to rescind the Bush administration’s refusal regulation. The refusal, or conscience, rule was pushed through by former president George W. Bush on December 18th and became effective just hours before President Obama was sworn into office. Because the refusal rule had gone into effect, the Obama administration needed to first propose the rule’s rescission and allow for a public comment period before it makes a final determination on the rule’s future.
The rule was purportedly introduced by the Bush administration to protect medical providers who refuse to perform procedures to which they have moral objections. According to the National Women’s Law Center, the rule as finalized by the Bush administration gives specific and detailed guidance to healthcare providers about a myriad of ways in which they can refuse to provide care to patients. Yet, it offers almost no guidance to ensure patients can get access to the care and information they need, and no guidance to healthcare providers about how they can meet their patients’ needs in the face of employees’ refusals. Moreover, the final rule undermines state laws that ensure patients have access to essential medical care, including reproductive health care. And, the rule does not even require that patients be informed of the providers’ refusal to give them full information.[i]
This wide-ranging rule has implications for those providing services and information in areas including reproductive health, HIV, drug addiction, infertility, vaccinations, psychology, sexually transmitted infections, and end-of-life care, among others, and there was significant ambiguity in how the rule would play out. For example, the final rule provides no definition of abortion, which many feared could give any doctor, nurse, receptionist, insurance plan, or even hospital the right to refuse to provide access to, or information about, birth control on the grounds that they believe that certain methods of contraception amount to abortion.
The U.S. Department of Health and Human Services stated that it proposed rescinding the rule because of concerns it “would limit access to patient care” and that some people, particularly those in rural and other underserved areas, could be denied access to a wide range of healthcare services.[ii]
“It is important that the Department have the opportunity to review this regulation to ensure its consistency with current administration policy,” stated the filing.[iii]
“The Obama administration is to be commended for taking action to rescind this harmful rule which leaves patients’ at risk of not being able to receive the vital sexual and reproductive healthcare services and information that they need,” said William Smith, vice president for public policy at SIECUS.
In January, three lawsuits were filed in federal court challenging the Bush rule. The first case was brought by the National Family Planning & Reproductive Health Association, represented by the ACLU; the second brought by the state of Connecticut, joined by California, Illinois, Massachusetts, New Jersey, New York, Oregon, and Rhode Island; and the other, by Planned Parenthood Federation of America and Planned Parenthood of Connecticut. Advocates have said they will continue to pursue these legal challenges in order to fight the rule in every capacity until a final order rescinding it becomes effective.[iv]
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[i] “Final HHS Rule Threatens Women’s Access to Health Care Information and Options, Poses Serious Risks to Women’s Health,” National Women’s Law Center, accessed 21 April 2009, <http://www.nwlc.org/pdf/final%20HHS%20rule%20threatens.pdf>.
[iv] National Family Planning & Reproductive Health Association, “President Obama to Rescind Regulations,” Press Release, 6 March 2009, accessed 21 April 2009, <http://nfprha.org/main/media_detail.cfm?ID=103>.