Well it's final. The Department of Health and Human Services went ahead and published its "conscience rights" rule designed to protect healthcare providers from being denied employment or being fired if they, say, refuse to administer abortions, 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. And more than 200,000 Planned Parenthood members filed comments against the rule, organization Vice President Laurie Rubiner tells me. One of the concerns raised—including by me—was whether patients would even be informed of their doctor's refusal to administer certain procedures or if they would simply be kept in the dark about their options.
HHS spokesperson Kevin Schweers says the agency dealt with this concern by noting in the final rule that ideally, patients and healthcare providers should "have full, open, and honest conversations about the services they request and provide." (You can read the full version of the rule here.) There is, though, no regulation forcing doctors to be fully transparent with patients—as there is forcing hospitals and clinics to hire docs without regard to the services that they're willing to perform. "It's, at best, window dressing," says Roger Evans, in charge of litigation and law policy at Planned Parenthood. "There's no legal requirement for a doctor to say anything."
The agency got this regulation in just under the wire; if it had been filed after December 20, President-elect Obama could have simply canceled it with a stroke of his pen, which he has promised to do. (Incoming presidents can cancel any "midnight rules" published within 30 days of their inauguration.) It also appears that Bush is backing away from his promise not to issue any new regulations after November 1. Planned Parenthood President Cecile Richards called it a "last parting shot at women's health," adding that the rule will "create chaos" among healthcare providers.
What will it take to reverse this new regulation?
"There are a couple of different ways it can be done," Rubiner tells me. Sens. Hillary Clinton and Patty Murray have already filed legislation to block federal funding to implement the rule—which would mean the regulation can't be put into effect. "The problem with this route is that the rule won't go away," Rubiner says. "Another Congress can vote to reverse the funding block."
Another possibility is via a Congressional Review Act provision in which both the House and Senate would pass resolutions of disapproval of the new regulation, which would strike it permanently from the books. That harsher rebuke, though, could be harder to accomplish, and the new Congress would need to do it within its first 75 working days, says Evans.
Lastly, the incoming head of HHS, Tom Daschle, could propose a new rule that negates the language of the conscience regulation. "This would also be a permanent fix, but it would take at least six months for the rule to be proposed, reviewed for comments, and issued as a final regulation," says Rubiner. She thinks the best approach may be a blocking of congressional funding until a new regulation can be implemented. "But we're going to talk to the Obama transition team to figure out the best route to go."