USCCB comments cite reasons for HHS to keep conscience regulation

CONSCIENCE-USCCB Mar-23-2009



By Nancy Frazier O'Brien
Catholic News Service

WASHINGTON (CNS) -- Rather than working to rescind a regulation that gives federal protection to the conscience rights of health care providers and institutions, the Obama administration's proper role is to enforce the will of Congress as already expressed in existing statutes, said attorneys for the U.S. Conference of Catholic Bishops.

Anthony R. Picarello Jr., USCCB general counsel, and Michael F. Moses, associate general counsel, filed public comments on behalf of the USCCB March 23 with the Department of Health and Human Services.

HHS opened a 30-day comment period March 10 on whether it should rescind a regulation that took effect two days before President Barack Obama took office. The rule codifies three longtime federal statutes prohibiting discrimination against health professionals who decline to participate in abortions or other medical procedures because of their religious or other moral objections.

"The question is not whether the policy to be pursued is the strong protection of conscience in health care -- Congress has already decided that question repeatedly and decisively by a series of statutes -- but how best to enforce the policy of conscience protection already expressed in those statutes," Picarello and Moses said.

The USCCB comments also said rescission of the regulation would conflict with the administration's stated goals of promoting "choice" and reducing abortions; reduce health care options for the poor and other underserved populations; and perpetuate the "undisguised hostility to conscience rights" and widespread ignorance of existing law that are already rampant.

"If the administration's policy is one of 'choice,' it cannot, consistent with that policy, refuse to accommodate a health care provider's choice not to participate in abortion," the USCCB said. "Otherwise, the policy is simply one of unmasked coercion."

Similarly, it makes no sense to contend that one is working to reduce abortions by increasing access to abortion, the comments said.

"Increasing abortion access increases abortion rates," the USCCB lawyers said. "The administration cannot coherently -- or in good faith -- claim to stand for both policies at the same time."

In soliciting public comment on the proposed rescission, HHS asked whether the regulation "reduces access to information and health care services, particularly by low-income women," as some groups such as Planned Parenthood and NARAL Pro-Choice America have charged.

The USCCB attorneys said rescinding the conscience regulation "would have uncertain effects on access" to abortion and sterilization, but "would certainly reduce access to life-affirming health care services, especially for poor and underserved populations."

Faced with a lack of conscience protections, health care providers and institutions opposed to abortion or sterilization could be forced out of business, thus reducing access to all health care, they added. "Indeed, the poorest and neediest patients will suffer the most from such reduction in access to life-affirming health care.

"Those who allege a conflict between conscience and 'access' neglect to ask why rural and other underserved areas are so frequently served only by a Catholic or other faith-based provider," the USCCB comments said. "This occurs because for-profit providers see no profit margin in serving poor or sparsely populated areas, while religiously affiliated providers ... see those patients as having inherent human dignity and human rights.

"If these providers were barred from acting in accord with the moral and religious convictions that motivated them to provide life-affirming health care in the first place, the result will not be more comprehensive health care for these areas but, in some cases, none at all," they added.

As evidence of the need for the current regulation, the USCCB attorneys said negative public reaction even before the rule took effect "demonstrates, at best, a deplorable lack of understanding about the federal legislative rights of conscience on which the regulation is based, at worst outright hostility to those statutory rights."

They also cited actions by groups such as the American College of Obstetricians and Gynecologists, the American Civil Liberties Union, NARAL Pro-Choice America and various state and local governments to ignore or override conscience rights in violation of the current federal statutes.

The USCCB called for outreach and educational efforts by HHS about the regulation "in addition to, rather than in lieu of, vigorous regulatory implementation of the existing conscience statutes."

"Public misperception about the conscience regulation and the statutes they enforce is, in and of itself, a testament to the need for regulatory enforcement and other guidance from HHS," the comments said.

"Congress has made its policy choice -- a choice that respects and advances this nation's founding principles of religious liberty and diversity, and that tends to increase patients' ready access to basic health care, regardless of their location or socio-economic status," the comments concluded. "The administration's regulatory actions should faithfully enforce that existing policy choice."