Obama Attack on Abortion Conscience Clause Likely Imminent

National   |   Bill Saunders   |   Feb 4, 2011   |   4:14PM   |   Washington, DC

An attack against conscience rights by the Obama Administration that has been on the radar for some time is now imminent.  

While federal law purports to protect healthcare providers from being forced to participate in abortions, a doctor or nurse who seeks to enforce his or her federal right may soon have nowhere to turn.  Regulations enacted under the Bush Administration to uphold federal conscience protection laws are expected to be revoked sometime over the next four weeks. 

The Obama Administration began the process of rescission nearly two years ago.  On March 10, 2009, the Department of Health and Human Services (“HHS”) under President Obama issued a “notice of proposed rule making” to rescind the conscience protection regulations promulgated by President Bush.  In a recent court filing, the Obama Administration stated that its final rule will be announced sometime between January 31 and March 1, 2011. 

Despite critics’ attempt to describe them otherwise, the Bush regulations do not expand federal law. They allow federal law to be enforced.

Under the Bush rule, recipients of federal healthcare funds are required to certify that they are in compliance with three existing federal conscience protection laws:  the Church amendment, the Public Health Service Act Section 245, and the Weldon Amendment (which is passed annually as part of Congressional appropriations).  Each of the laws covers different areas, but all relate to whether a healthcare professional can be required to participate in medical procedures or research activities against his or her religious beliefs or moral convictions.

Concerned that these laws were not being honored, and that illegal discrimination was occurring, HHS proposed the conscience clause rule in August 2008 in order to provide a regulatory vehicle to enforce the three conscience laws.  The rule was finalized December 19, 2008 and took effect January 20, 2009.

If the Obama Administration revokes the regulations, as expected, how will conscience rights fare against threats like that from the American College of Obstetricians and Gynecologists, who has proposed an Ethics rule requiring referral for abortion?  Failure to comply with the ACOG committee rule could result in the loss of an obstetrician’s board certification. 

What will be the recourse for someone, like Nurse Cathy DeCarlo, who was forced by her employer, Mt. Sinai hospital, to participate in a late term abortion? A federal court has ruled that Nurse DeCarlo does not have a right to bring her case to court, but that HHS can (if they choose to) pursue her case under the Bush regulations

It is unlikely that the current Congress (particularly in the Senate) has the votes to convert the revoked guidelines into a binding statute.  However, Americans United for Life has drafted a “model” bill to protect conscience at the state level.  Once enacted, the law is enforceable by any individual or institution (Nurse DeCarlo, for example, could sue), and a violation of conscience is subject to damages and injunctive relief.