Your Doctor's Rights Vs. Your Rights

There's still time to comment on a proposed law that could cut your access to reproductive health services.

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In July, I wrote about a possible new federal rule designed to protect healthcare providers from being denied employment or fired if they, say, refused to administer emergency contraception or certain forms of birth control because of their religious or moral beliefs. Dozens of health organizations, including the American College of Obstetricians and Gynecologists and the American Medical Association, voiced their fierce opposition, saying that such a rule would deny women access to full reproductive care. In a poll that I included in this blog, 92 percent of you said you were against the regulation, while 8 percent of you said you favored it. As it turns out, this draft rule was formally proposed at the end of last month and could become a reality on September 25 after the period ends for submitting comments.

The proposed rule states: "Any entity, including a state or local government, that carries out any part of any health service program funded in whole or in part under a program administered by the Department of Health and Human Services...shall not require any individual to perform or assist in the performance of any part of a health service program or research activity funded by the Department if such service or activity would be contrary to his religious beliefs or moral convictions." You can read the full text here.

Women's health activists are continuing to voice their collective dissent; as, for example, in this op-ed by Sen. Hillary Clinton of New York and Cecile Richards, president of Planned Parenthood, which was recently published in the New York Times.

I asked attorney Judy Waxman, vice president for health and reproductive rights at the National Women's Law Center, to discuss how this new regulation could affect our medical care. I was surprised to hear her say that "the rule is not just about abortion and birth control."

Could a woman be denied an abortion at, say, a Planned Parenthood clinic that accepts federal funds for family planning services?

It's possible, but I'm more concerned about what's going to happen in doctor's offices. The rule is so broad that it includes not only physicians but nurses, lab technicians, receptionists, and anyone else who works there. For instance, a receptionist could theoretically refuse to schedule an appointment for a woman wishing to have an IUD inserted because the device may cause the expulsion of a fertilized egg, which the receptionist considers to be abortion. A maintenance worker may refuse to clean rooms used for abortions. Does the rule still define pregnancy as fertilization of an egg, as the previous draft rule did?

No, that part was taken out, but the latest version basically leaves the question open, leaving it up to individual healthcare workers to decide whatever it is that they morally object to. A nurse, for example, could refuse to provide counseling to cancer patients about freezing eggs or sperm before chemotherapy if he or she morally objects to artificial fertility treatments. And, in an effort to discourage promiscuity, a pediatrician may decline to provide the vaccine that protects against the sexually transmitted HPV virus to teenagers. What about the rights of patients in all of this?

We're certainly most concerned about this. Women are the ones who will lose out here, and this proposed rule contradicts other laws on the books that protect employers' rights—which in this case would be the healthcare facility trying to provide these services to patients. Title VII of the Civil Rights Act has a provision that says that an employer is obligated to accommodate an employee's religious beliefs unless it presents a burden for the employer. So a large pharmacy chain with several pharmacists on duty can afford to have one pharmacist who won't dispense birth control if others behind the counter will. A small family-owned shop may not be able to do that. Will you take legal action to combat this rule?

We're hoping that the Department of Health and Human Services comes to its senses, after reading all the public comments, and doesn't issue a final regulation. But we'd consider bringing a lawsuit if this goes forward. What can women do to voice their opinion on this proposed rule?

They can send a comment to HHS until September 25, after which the agency will review all the comments and determine if a final rule should be issued. Go to this HHS website and click on the link "comment or submission" and enter the key words "provider conscience." Or send an E-mail directly to HHS at to make your thoughts known.