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The Broadest Rule Ever Told

March 11th, 2009 No comments

The War in Iraq, the erosion of our global political capital and standing, the response to Katrina, the economic collapse — with so many delicious delicacies of abject failure ripe for ingestion (and expulsion!), it’s little wonder that other Bush Administration disasters got lost in the shuffle. It’s kind of like being the fourth Baldwin brother.

As is generally known, and as is to an extent common to all lame duck presidencies, Bush et al. pushed through a number of “midnight regulations” designed to perpetuate their policy preferences. In this case, though, many of these last-minute changes had the effect of leaving a residue not unlike the smell of Limburger cheese.

Among the most pernicious is the “Provider Conscience Act,” which isn’t a legislative “act” at all, but a rule created by the Department of Health and Human Services (“HHS”). This rule, which went into effect on the last day of Bush’s historically inept tenure, creates an amazingly broad “safe harbor” for anyone who refuses, for reasons of “religious beliefs” or “moral convictions,” to perform any “health service” at all. (The rule applies to any entity that receives federal funds; effectively, almost all of them because of Medicare and Medicaid.)

This language could hardly be broader. HHS refused to define “health service,” or to specify what will count as valid “moral convictions.” As a practical matter, anyone who is remotely connected to any health-related procedure (because those who assist medical personnel are also covered by the exemption) can refuse to do anything that conflicts with whatever they believe. (Good luck winning a challenge to the sincerity of the “belief” after the fact.) They don’t need to refer the patient to another provider who might be willing to perform services that the patient is actually legally entitled to. Nor does the provider need to inform the patient of these “limitations” until the moment of refusal.

Before this blunderbuss rule was put into place, there were already several sources of federal legal protection for those providers who refused to provide abortion services. Over the years, parties offering, seeking, and declining to provide such services have all learned how to live with these restrictions. But this new “act” goes well beyond the context of abortion, potentially applying to birth control, as well. And not only birth control: In principle, there is no service, operation, or procedure that isn’t covered by this rule.

Does a doctor, or her assistant, oppose vaccination? Don’t vaccinate. (Will the parent take the child to another physician who will vaccinate? Perhaps not, and you can expect a public health peril to develop.) And the doctor can’t fire the person who refuses, because the law protects the “conscientious objector.”

Refusing to provide blood transfusions? Not willing to fill prescriptions for birth control drugs needed to ensure a woman’s health? These and countless other decisions are protected under this rule. HHS was impervious to arguments that this open-ended rule could lead to health care providers refusing to perform any task for any reason at all, but it’s less understandable that a law professor would agree. Yet in an installment of Radio Times (search for 12/16/08 show), St. Thomas University law professor Teresa Collett brushed aside these concerns, telling me that the law, while broad, wouldn’t lead to the kinds of problems I’ve just identified. There is no basis for her confidence.

There’s likely good news. The Obama Administration opposes the rule and has already begun the process that could repeal it.  And the Attorney General of Connecticut, one Richard Blumenthal, has sued (along with others) to enjoin the rule. But for now, the rule threatens public and private health and places providers’ whims over patient safety and autonomy.

Is it Trash Day yet?

{an acknowledgment to Dan Whitney, a student whose solid paper relating to this topic saved me research time and effort}