Conscience Protection in Health and Human Services Regulation
William L. Saunders, Jr. and Michael A. Fragoso
On August 21, 2008 , Secretary of Health and Human Services ("HHS") Mike Leavitt proposed regulations seeking to protect the rights of conscience for healthcare professionals. While the regulations themselves are new, conscience protection of medical personnel at the federal level dates back to the time of Roe v. Wade in the form of the Church Amendments. Conscience rights are protected in two additional components of federal law: the Public Health Services Act �245, and the Weldon Amendment. The regulations proposed by Secretary Leavitt, entitled "Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law" ("the Regulations") are an effort to provide a stronger regulatory context for the existing laws.
In spite of these long-standing protections of conscience rights for medical personnel, they are still targeted by pro-abortion forces at home and abroad. Presently, for instance, in the Australian state of Victoria , there are efforts underway to force medical professionals to participate in abortions and other anti-life activities.  If they refuse, they will lose their medical licenses; it is as simple as that. In early 2008 similar actions were taken in Ontario Province , Canada , but they largely failed after meeting stiff resistance.
In the United States, the most recent threat to conscience rights came in November of 2007, when the American College of Obstetricians and Gynecologists ("ACOG") issued an opinion (the "Opinion") in which it said that doctors who refused to perform abortions should be required to refer someone seeking an abortion to a doctor who would perform it.  The ethical problem is that if one believes a procedure to be immoral, the act of referring for it makes oneself complicit in the subsequent immoral act. Conscience protection, if it means anything, means that one cannot be forced to do, directly or indirectly, what one judges to be immoral or unethical.
Particularly problematic is that this is more than a mere "opinion"-namely, a belief held by one person with which others can be free to agree or disagree. This opinion has teeth.
The American Board of Obstetricians and Gynecologists ("ABOG") issued a bulletin in November 2007 on maintenance by obstetricians of certification (the process by which a practicing obstetrician can maintain his professional credentials). Certification can be revoked if there is a "violation of ABOG or ACOG rules and/or ethics principles or felony convictions." Further, all applicants for certification must sign that they understand they may face disqualification in the event "that the physician shall have violated any of 'The Ethical Considerations in the Practice of Obstetrics and Gynecology' currently published by The American College of Obstetricians and Gynecologists and adhered to by the Board."
Therefore the importance of "ethical norms" in ABOG certification is a concern to obstetricians given the ethical norms espoused by ACOG. ACOG's opinion, if it becomes part of the larger of ACOG ethical norms,  would strip board certification from doctors who refuse to refer for abortion, thus effectively denying them hospital privileges and costing them their livelihoods.
Various advocacy groups took issue with the Opinion, and eventually Secretary Leavitt took interest in it. He expressed concern that the Opinion, if put into force as an ethics requirement for obstetricians, would force pro-life obstetricians to refer for abortion in order to maintain their certifications and livelihoods, and thus would run counter to existing federal law protecting the rights of conscience of medical professionals and health care organizations.
ABOG and ACOG responded in a way Secretary Leavitt found "dodgy and unsatisfying." While Leavitt expressed concern over potential ramifications of the Opinion for doctors who refuse to refer for abortion, Dr. Norman Gant of ABOG defied Leavitt to cite any existing examples of discrimination, while maintaining that no doctors are forced to perform abortions. In other words, Gant answered a question he was never asked.
Though the Church Amendments date back to the 1970s, there has never been regulatory rule-making to determine just how the conscience protection provided by it and the other two conscience provisions are to work. In response to the ACOG/ABOG controversy, Secretary Leavitt considered issuing regulations protecting medical professionals' rights of conscience, and HHS prepared draft regulations for internal discussion.
The draft was leaked to the New York Times, which published them with comments by pro-abortion groups such as Planned Parenthood. The draft regulations made specific reference to pregnancy beginning at conception, and referred to "the termination of the life of a human ... before or after implantation." As such, it would have been possible for a "health care entity" (including doctors) to have a conscientious objection to abortifacients (for instance, drugs and devices which might prevent implantation of an embryo, such as Plan B, the birth control pill, and IUDs). Pro-abortion groups attacked the regulations, claiming they would limit access to contraception. NARAL Pro-Choice America termed it "The Bush Administration's Attack on Birth Control." On the other hand, a letter was sent to Leavitt by 132 members of Congress urging adoption of the regulations.
Secretary Leavitt responded to this on his blog, confirming that regulations were being considered. Pro-abortion activists flooded his comment section. Twenty-five of their blog posts were removed because they included "profane language or personal attacks on [Secretary Leavitt's] body parts, religion or family." Secretary Leavitt summarized the pro-abortion argument as follows: "[I]f a person goes to medical school they lose their right of conscience. Freedom of expression and action is surrendered with the issuance of a medical degree." He insisted that his goal was not to ban contraception or abortion, but to protect conscience-"If the Department of Health and Human Services issues a regulation on this matter, it will aim at one thing, protecting the right of conscience of those who practice medicine. From what I've read the last few days, there's a serious need for it."
On August 21st, 2008 , ten days after his second blog post, Sec. Leavitt announced that HHS would, in fact, be filing the Regulations in the Federal Register clarifying the regulatory framework surrounding existing federal law on the conscience rights of "health care entities." The Regulations reflect the three federal provisions on conscience, and provide for a compliance certification requirement, along with an outlet to file grievances through HHS. Many organizations filed comments including the Family Research Council. On the other side, 13 state Attorneys General issued comments opposing the Regulations, as did the American Psychological Association, the American Nurses Association, and the American Academy of Pediatrics.
The Regulations are meant to bolster the federal legislation mentioned earlier in a manner as robust as possible. The document notes, "Consistent with this objective to protect the conscience rights of health care entities/entities, the provisions in the Church Amendments, section 245 of the Public Health Service Act and the Weldon Amendment, and the implementing regulations contained in this Part are to be interpreted and implemented broadly to effectuate their protective purposes."
A good portion of the Regulations is spent on definitions. A shortcoming of the existing federal legislation is its ambiguous language-what is meant by "Health Care Entity"? What is meant by "abortion?" The Regulations go a long way in addressing those concerns: they define "assist in the performance" so as to include referral; they also define "health care entity" in a broad manner.
Regrettably, the ambiguous use of the term "abortion" in the federal legislation is not clarified by the Regulations. In the Regulations, it is unclear whether or not a potentially abortifacient drug such as Plan B would count as the sort of abortion-related procedure for which a medical professional's conscientious objection is protected because the term "abortion" is never defined. It is possible that this definition was omitted from the final regulations due to the furor over the definition of abortion in the leaked draft.
Beyond marking out definitions, the Regulations protect medical personnel from discrimination on a number of conscience related grounds. First, medical students and practicing physicians are protected from having, "(A) to undergo training in the performance of abortions, or to require, provide, refer for, or make arrangements for training in the performance of abortions; (B) to perform, refer for, or make other arrangements for, abortions; or (C) to refer for abortions..."
Students and physicians are protected from discrimination based on the sort of institution in which they received their training. They cannot be subject to discrimination for having received their training at an institution "that does not or did not require attendees to perform induced abortions or require, provide, or refer for training in the performance of induced abortions, or make arrangements for the provision of such training..."
Lastly, medical personnel cannot be subject to any discrimination pertaining to credentialing or licensing on grounds related to abortion (thus answering the perceived threat from the Opinion by ACOG).
The Regulations further mandate that the applicable institutions have to meet established certification standards for compliance. This serves to make affected recipients (such as any state and local governments that receive funds through HHS, or any non-governmental entity that receives funds through HHS) better aware of their existing legal obligations to the conscience rights of medical professionals, as well as establishing a more robust regulatory mechanism for HHS to ensure that these rights are, in fact, being maintained.
Now that the comment period has ended, it is expected that HHS will formally adopt its regulations by the end of October. However, HHS might not do so, or it might amend the Regulations in some way based on the comments it has received.
A lingering uncertainty involving the Regulations is their future in light of the upcoming presidential elections. A pro-abortion administration and Congress would have avenues by which to reverse these regulations.  For instance, such an administration could promulgate a rule change pursuant to the Administrative Procedures Act, though since it in effect revokes the prior rule change (i.e. the Regulations), it would be a complicated and convoluted process. Furthermore, a pro-abortion Congress could reverse the ruling within 60 session days of its publication through the Congressional Review Act. However, such an action by Congress could be vetoed by a pro-life president.
William L. Saunders is Senior Fellow and Director of the Center for Human Life and Bioethics at Family Research Council. Michael A. Fragoso, a graduate of Princeton University, is a research assistant in the Center for Human Life and Bioethics.
 42 U.S.C. 3001-7
 42 U.S.C. 238n (also known as the "Coats Amendment")
 Consolidated Appropriations Act, 2008, Pub L. 110-161, �508(d), 121 Stat. 1844, 2209 (Note that being an appropriations "rider," rather than a law, the Weldon Amendment is likely to come under severe pressure in a hostile Congress in the future.)
 Department of Health and Human Services 45 CFR Part 88; available at: http://secretarysblog.hhs.gov/my_weblog/2008/08/physician-con-2.html
 Available at: http://prochoicevic.com/files/webfm/pdf/firstBill.pdf
 Following a chaotic and contentious comment period on the proposed conscience rules, the Ontario Physicians College was forced to jettison the most anti-conscience components. Nonetheless, physicians with conscientious objections still might be subject to the judgments of the Ontario Human Rights Commission. For a fuller treatment, see John Jalsevac, "Ontario Physicians College Backs Away from Controversial Conscience-Restriction Policy," LifesiteNews.com ( September 18, 2008 ); available at: http://www.lifesitenews.com/ldn/2008/sep/08091809.html
 For a fuller treatment of the ethical problems present in the Opinion see William L. Saunders, "Let Your Conscience Be Your Guide," FRC Perspective (September, 2008).
 American Board of Obstetrics & Gynecology, Bulletin for 2008: Maintenance of Certification; Voluntary Recertification Certificate Renewal, at 10, �5.b (Nov. 2007)
 Ibid, at 31, �3.f (Nov. 2007)
 While ABOG and ACOG are separate organizations (and their leaderships stress this fact), they are enmeshed at points involving ethics and certification, as seen above.
 There is no compelling reason to think the views of the Opinion would not be mainstreamed. However, while unlikely, it is still possible that parliamentary action could be taken by the membership of ACOG in opposing the Opinion as happened in Ontario (See fn 6).
 Letter to ACOG, signed by 29 representatives of non-governmental advocacy groups; available at: http://www.cmda.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=12243
 Secretary Leavitt's letter to ACOG and ABOG; available at: http://www.hhs.gov/news/press/2008pres/03/20080314a.html
 "Physician Conscience," (August 7, 2008); available at: http://secretarysblog.hhs.gov/my_weblog/2008/08/physician-consc.html
 Robert Pear, "Abortion Proposal Sets Condition on Aid," New York Times (July 15, 2008); available at: http://www.nytimes.com/2008/07/15/washington/15rule.html?_r=1&scp=2&sq=proposed%20regulations%20birth%20control&st=cse&oref=slogin
 NARAL Pro-Choice America, formerly known as the National Abortion and Reproductive Rights Action League, from the National Abortion Rights Action League, in turn formerly known as the National Association for the Repeal of Abortion Laws, as founded by Dr. Bernard Nathanson and Betty Friedan in 1968.
 "Physician Conscience Blog II," (August 11, 2008); available at: http://secretarysblog.hhs.gov/my_weblog/2008/08/physician-consc.html
 "Physician Conscience Blog III," (August 21, 2008); available at: http://secretarysblog.hhs.gov/my_weblog/2008/08/physician-con-1.html
 As defined in Section 88.2 Definitions: Health Care Entity / Entity: While both PHS Act � 245 and the Weldon Amendment provide examples of specific types of protected individuals and health care organizations, neither statute provides an exhaustive list of such health care entities. PHS Act � 245 defines "health care entity" as "includ[ing] an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions." As the Department has previously indicated, the definition of "health care entity" in PHS Act � 245 also encompasses institutional entities, such as hospitals and other entities. The Weldon Amendment defines the term "health care entity" as "includ[ing] an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan." The Church Amendment does not define the term "entity," and does not use the term "health care entity." In keeping with the definitions in PHS Act � 245 and the Weldon Amendment, the Department proposes to define "health care entity" to include the specifically mentioned organizations from the two statutes, as well as other types of entities referenced in the Church Amendments. It is important to note that the Department does not intend for this to be a comprehensive list of relevant organizations for purposes of the regulation, but merely a list of examples.
 Section 88.1 "Purpose"
 Section 88.2 "Definitions"
 Some "entities" covered are physicians, hospitals, medical training programs. See fn 24 above for a complete list.
 See fns 19 and 20 above
 The affected institutions are identified in �88.3 "Applicability."
 Section 88.5 "Applicability" State and local governments, private entities, teaching hospitals, and government funded research institutions are all affected by these regulations in ways laid-out in this section.
 For a brief summary of how one can reverse late-administration regulations see Susan E. Dudley, "Reversing Midnight Regulations," Mercatus Reports, (Spring 2001); available at: http://www.cato.org/pubs/regulation/regv24n1/dudley.pdf
 5 U.S.C. � 553. Rule making
 5 U.S.C. Chapter 8