House Asks Sebelius if Obama Admin Ditching Conscience Clause

National   |   Steven Ertelt   |   Feb 14, 2011   |   5:22PM   |   Washington, DC

The Obama administration has vacillated since early 2009 on whether it would overturn the conscience protections the Bush administration put in place to protect pro-life medical workers.

Because of that, 46 members of the House of Representatives have signed a letter to Secretary of Health and Human Services Kathleen Sebelius asking her to explain why her department is seeking to repeal conscience protections for health care workers in light of known attacks on such workers.

The last information the Obama administration made public on the likely attempt to overturn the conscience rules came in December, when Obama attorneys indicated the Obama administration is still working to overturn conscience rights for medical professionals on abortion put on the books by the Bush administration. The information came to light from legal papers the administration filed in a case the state of Connecticut launched against the conscience protections.

In a document filed in federal court in November, Obama administration attorneys admitted that the administration wants to finalize a rescission of the conscience rules but has been delayed because of other business — likely due to the HHS working on implementing the provisions of the ObamaCare law.

HHS “hope[d] to have an internal draft final rule prepared in the near future, but that the schedule is necessarily tentative given the possibility of unforeseen delays and the need to devote time and resources to other agency priorities,” the November legal paper said.

The Obama administration filed another legal paper December 1 stating “HHS still cannot be certain of a date for completing the rulemaking” but added “HHS expects to have a final rule published in the Federal Register within sixty to ninety days – i.e., as early as January 31, 2011, and no later than March 1, 2011.”

With the March 1 timeline approaching, the members of Congress want Sebelius to know that any final decision to rescind the conscience protections has their opposition. The letter asks Sebelius to explain why her department is considering repealing the conscience protections in light of known attacks on such workers — and they cited two situations warranting a reconsideration of any rescission decision.

One of the situations cited involves a nurse forced against her conscience by New York’s Mt. Sinai Hospital to participate in an abortion. The U.S. Court of Appeals for the 2nd Circuit upheld the dismissal of her federal lawsuit filed by ADF attorneys, leaving only an ongoing investigation by HHS as the means to defend her federally protected rights while her New York state lawsuit continues.

Planned Parenthood and other plaintiffs in the federal lawsuit State of Connecticut v. United States of America are seeking to tear down the Bush regulations — and that is the case that sparked the legal paperwork announcing the timeline. That’s because the Alliance Defense Fund attorneys filed a motion to intervene in that case on behalf of Cenzon-DeCarlo in December.

“Because the defendants, Sebelius and the Obama administration, want to dismantle the regulation as the plaintiffs desire, little adequate defense exists for the regulation and for health care workers protected by a federal law known as the Church Amendment. The Church Amendment prohibits recipients of federal funds from discriminating against pro-life health care workers but its enforcement may be limited without the implementing regulation that directs HHS to conduct investigations,” ADF explains.

Another situation cited by the House letter to Sebelius involves Vanderbilt University in Tennessee.

In January, ADF attorneys filed complaints with HHS over problematic language on the applications for Vanderbilt’s nurse residency program which included a pledge to participate in abortions. The university changed the language, but only after ADF filed the complaints.

“Both of these situations are precisely the type of discrimination against health care providers that federal conscience statutes were meant to redress,” the letter from House members explains.

The letter adds:  “We strongly oppose any action that would undermine or eliminate the responsibility of HHS to enforce conscience laws that have been enacted by Congress for nearly four decades. The Implementing Regulations did not add to the substance of existing law, but required fund recipients to certify compliance with the law and more specifically committed HHS to enforce those laws as written.”

ADF Legal Counsel Matt Bowman commented on the letter and the potential for rescinding the conscience clause regulations.

“Medical professionals should not be punished for holding to their beliefs, and they should not be forced to perform abortions against their conscience,” he told  “Members of the House are justified in asking why the Obama administration would be seeking to repeal such protections, especially in light of the recent examples of abuse involving ADF clients.”

In 2008, the Bush administration issued a rule that prohibited recipients of federal money from discriminating against doctors, nurses and health care aides who refuse to take part in medical procedures to which they have religious or moral objections, such as abortion. The rule implemented existing conscience protection laws that ensure medical professionals cannot be denied employment because they do not want to assist in abortions.

At the end of February 2009, the Obama administration announced it began “reviewing” the regulations implementing conscience laws, the first step toward rescinding the rule altogether.

In 2009, Obama told students at Notre Dame he wanted to find common ground on abortion and used the conscience clause as an example. but he came under criticism from pro-life lawmakers who said he was working to remove the protections.