Lashing out against Leavitt
Even birth control pill could be fall under new federal rules that equate abortion with contraception under the guise of new 'conscience' policy.
ALBUQUERQUE -- The Bush Administration has drafted a new set of regulations — leaked before their passage by the New York Times — that would require all health care providers who get federal money to certify that they would not discriminate against employees who have moral objections to certain procedures and services, including abortion and end-of-life directives. The proposed regulations redefine abortion so broadly that it could include birth control methods including the pill, which is the most widely used form of birth control in the country.
Under the draft rules, even family planning clinics could not refuse to hire employees who would not prescribe or dispense birth control for personal reasons. Local reproductive rights activists are mobilizing against the rules, which they say would conflict with several New Mexico state laws, including one that requires emergency rooms to provide rape victims with information about and access to emergency contraception. If implemented, the rules could have serious consequences for nearly every hospital and clinic in the state.
"We have laws in New Mexico that many states do not have, in terms of reproductive health and end-of-life care," says Jane Wishner, executive director of the Albuquerque-based Southwest Women's Law Center. Those laws would be put at risk, she explains in an analysis of the proposed regulations, released last week:
The current draft regulation would substantially undermine New Mexico statutes that promote and protect patients’ ability to make their own health care decisions. One of the stated purposes of the draft regulation is to counter state laws, including specifically New Mexico’s Sexual Assault Survivors Emergency Care Act, that do not allow for the expansive refusals contained in the regulation. There are numerous statutes in New Mexico that could be affected by such a regulation.
The changes, requested by Health and Human Services Department Secretary Michael Leavitt, could also be interpreted to allow health care providers to deny a patients' end-of-life directives, such as do-not-resuscitate orders. "Think of the Terry Schiavo case," Wishner says, referring to the controversy over whether a brain dead woman should be kept alive against her husband's wishes and what he said were her wishes. "It could wreak havoc in any institution," Wishner says.
The Southwest Women's Law Center recommends that all health care organizations that receive funding from the Health and Human Services Department analyze the department's proposal so they can be prepared to deal with the impact of the changes.
The roots of controversy
As it is now, the government uses the definition of pregnancy accepted by the American Medical Association and the American College of Obstetricians and Gynecologists. But the Health and Human Services Department's proposed "clarification" makes a significant change, defining pregnancy at fertilization, rather than implantation. That specific difference is what brings birth control under the department's definition of abortion.
"There’s a pretty long-standing, accepted definition from the entire medical community that pregnancy begins with establishment of implantation," says Dr. Tony Ogburn, an associate professor of obstetrics and gynecology at the University of New Mexico and the state section chair of the American College of Obstetricians and Gynecologists. "To say it begins at conception is a major departure."
In a post on his blog, Secretary Leavitt claims that new rules were drafted partly in response to a November 2007 opinion by the ethics committee of the American College of Obstetricians and Gynecologists. "Although respect for conscience is important, conscientious refusals should be limited if they constitute an imposition of religious or moral beliefs on patients, negatively affect a patient's health, are based on scientific misinformation, or create or reinforce racial or socioeconomic inequalities," the ethics committee determined.
Leavitt objected to the committee's recommendation that physicians who didn't want to provide birth control or abortions should provide referrals to others who do, so he asked that new regulations be drafted regarding "conscience rights." But when they were leaked, a storm of protest ensued. In late July, more than 50 organizations, including Planned Parenthood, NARAL Pro-Choice America, the Southwest Women's Law Center, ACLU, NOW and the League of Women Voters, signed onto an open letter to Secretary Leavitt protesting the proposed regulations. Senators Hillary Clinton, D-New York, and Patty Murray, D-Washington, were publicly critical of the proposal, and sent a series of letters of their own.
Leavitt defended himself on his blog:
An early draft of the regulations found its way into public circulation before it had reached my review. It contained words that lead some to conclude my intent is to deal with the subject of contraceptives, somehow defining them as abortion. Not true. The Bush Administration has consistently supported the unborn. However, the issue I asked to be addressed in this regulation is not abortion or contraceptives, but the legal right medical practitioners have to practice according to their conscience and patients should be able to choose a doctor who has beliefs like his or hers.
But as far as Dr. Ogburn is concerned, this is a "parting shot" in what he describes as the Bush Administration's "war on women's health." He says that the people driving the movement for greater conscience clauses are driven by a small but vocal minority. "They're small but they tend to be outspoken," he says. "I've been an abortion provider for a long time and we've had instances in our clinics and in our unit when people have objected to something because they don't agree with it. I support people's concern about abortion and we go out of our way to accommodate them." As an example, he explains that the Center for Reproductive Health at UNM only has one receptionist. If these rules were passed, the center could be forced to hire a receptionist who would refuse to book any appointments for patients requesting birth control or abortions—virtually all of the appointments made there. "It would be devastating," he says.
Despite Leavitt's denial that the regulations target birth control, the Southwest Women's Law Center believes that's precisely what the administration is doing, caving in to demands by the most extreme factions of the conservative movement. As Wishner writes:
Secretary Leavitt posted a statement on his blog denying any intention to define contraception as a form of abortion. This is a victory for those who protested the draft regulation. But Secretary Leavitt made clear that he believes—and is still contemplating—a sweeping regulation to create 'the legal right' for medical providers to 'practice according to their conscience.' Significantly, most of the examples the draft regulation offers to justify why such a broad “conscience” policy is necessary are examples of efforts to ensure that women receive access to birth control.
A Storm of Protest
Heather Brewer, executive director of NARAL Pro-Choice New Mexico says she's deeply concerned about the proposed regulations "What we're doing now is making sure people know this is coming and that they understand that birth control could be under attack," she says.
Because the regulations have not yet been officially proposed, they have not yet fully mobilized supporters. "If they are proposed, then there will be a 30-day comment period, which is when the real mobilizing will happen," she explains.
On Wednesday, MoveOn.org sent out a nationwide e-mail appeal to members, asking them to sign a petition protesting the proposed changes. "It seems unbelievable, but the Bush Administration is quietly trying to redefine "abortion" to include birth control, the e-mail said, adding "And it's being pushed as a 'rule change'—meaning it doesn't need congressional approval." Members were asked to sign on to a message to the Secretary reading "Contraception is NOT abortion. The Bush Administration's proposal to change the definition of abortion and reduce women's access to birth control must be stopped." By Saturday, 250,000 had signed on.
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