Lame Duck, Pro-Life

Lame Duck, Pro-Life November 20, 2008

The lame duck period of any politician’s career can be a revealing time. So long as a politician faces the prospect of re-election, there will always be suspicion that his actions are less a reflection of his true beliefs than they are of what he calculates will be to his political advantage. Once the specter of re-election is removed, however, a politician becomes more free to let his true convictions (or lack therefore) show forth. History provides numerous examples of this. And now we have another:

A last-minute Bush administration plan to grant sweeping new protections to health care providers who oppose abortion and other procedures on religious or moral grounds has provoked a torrent of objections, including a strenuous protest from the government agency that enforces job-discrimination laws.

The proposed rule would prohibit recipients of federal money from discriminating against doctors, nurses and other health care workers who refuse to perform or to assist in the performance of abortions or sterilization procedures because of their “religious beliefs or moral convictions.”

It would also prevent hospitals, clinics, doctors’ offices and drugstores from requiring employees with religious or moral objections to “assist in the performance of any part of a health service program or research activity” financed by the Department of Health and Human Services.

Officials at the Health and Human Services Department said they intended to issue a final version of the rule within days. Aides and advisers to Obama said he would try to rescind it, a process that could take three to six months.

To avoid the usual rush of last-minute rules, the White House said in May that new regulations should be proposed by June 1 and issued by Nov. 1. The “provider conscience” rule missed both deadlines.

Under the White House directive, the deadlines can be waived “in extraordinary circumstances.” Administration officials were unable to say immediately why an exception might be justified in this case.

The proposal is supported by the U.S. Conference of Catholic Bishops and the Catholic Health Association, which represents Catholic hospitals.

Sister Carol Keehan, president of the Catholic Health Association, said that in recent years, “we have seen a variety of efforts to force Catholic and other health care providers to perform or refer for abortions and sterilizations.”

More. (HT: Mark Shea)

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  • A friend of mine was involved in developing those rules. He said Obama’s HHS transition team (all former Clintonites) is already meeting and planning to ensure they don’t take effect. Change we can believe in. Although, in fairness, I am not sure why these rules weren’t passed in the previous eight years.

  • Bush has a pretty good claim to the “Worst President Ever” title. Carter was bad, but at least he was gone after 4 years. Even to people who want to outlaw abortion under any circumstance, to which I don’t belong, the occasional gesture by Bush has to pale in comparison to his reign of ruins. This last minute bread crumb shouldn’t impress “pro-lifers” too much. Not to mention that this is a) not that good an idea and b) will be overturned anyway. I can understand that someone would not want to perform or participate in an abortion, but to refuse to fill the pill, that’s just stupid. If you’re a pharmacist, you fill the prescriptions ok’d by the FDA. Period. Of course, there aren’t that many petulant people around to begin with. We’ve never encountered it nor do I know of anyone who has.

    One just cannot deny any longer that this has been a catastrophic administration, although not everything is his fault, final responsibility lies with him. My dislike for liberal mandarins and Obama’s more devout disciples has been eclipsed by the absolute incompetence of the GOP, not to mention that its core constituency has become rather unsavory over the last 15 years or so. Now it’s time for the other party to screw us. Maybe it won’t be as hard. Hey, novel idea, how about more parties than just two ? Ending the ability to redraw Congressional districts ? Or stopping with the whole Iowa song and dance. A freakin’ straw poll ? Not to mention that primaries mean that the extremists in both parties prevail. Who’d go to Bob Jones U otherwise ? Or sing the praises of Ethanol ? While we’re at it, how about introducing the metric system ? I guess adding and subtracting zeroes is un-American, downright socialist. I’ll take feet, yards and miles, please ! So easy to convert. Just multiply by 3.56 and divide by zero. Of course we really should be worried about those 2 liter Coke bottles infiltrating god’s country, they hate us because we’re free. Don’t misunderestimate them, they could go nucular any minute. They’re probably gay, too. Communists as well. Gay metric Communist Darwinists ! I hear the Jews are behind it all. First they crucify our lord, now this. Cletus, get the shotgun. Them city folk are here.

    Let’s have a look at the, uh, Bush Legacy:

    – The Afghanistan war has no end in sight. But, granted, it at least had a justification.

    – The Iraq War that advisers and apparently god talked him into. Endless, costly beyond imagination. Nobody knows how many people have been killed, American troops died for zilch. Thanks for playing. Not to mention the rather conniving “Support our troops” argument that tries to compel lockstep and make opposition to the war synonymous with deserting ‘our troops’.

    – The complete and utter devastation of the American economy. Who got the bail-out money ? Average people ? Nuh-uh. It went to corporations, with a fair share going to his cronies. It’s a bottomless pit, there is never enough that could be thrown in and it vanishes forever. Ask the military where those billions went that had apparently evaporated. About a TRILLION dollars. Glad the executives still get to go to exclusive health spas. If only their parachutes were actually made of gold.

    – Another last-minute effort seems to be to undermine protecting the environment, turning appointees in the EPA into civil servants to keep them around.

    This administration cannot be out of power soon enough. I had thought that regular greed would be enough, that they’d be satisfied with highway robbery rather than going on a highstakes gambling binge. The mob would have run things better. Both parties feed from the same troth, of course. Obama would have to make a real effort to do worse than Bush. Of course, anything is possible. Not to mention that the nightmare that’s engulfed the economy isn’t going to dissipate as soon as Bush’s gone. Of course, the market works. Bad businesses go out of business. It’s only corporate socialism that keeps all those rackets going. The American financial world was built not just on sand, but on quicksand. It was only a matter of time for everything to collapse.

    Of course, now that the banks have been showered with taxpayer money, they screw their customers. Rate hike here, lower revolving balance, higher minimum payments – you name it. The people are paying them to get screwed. Does that count as prostitution ?

    Anyone who defends Bush because he’s supposedly ‘pro-life’ is akin to a wife who’s happy that her husband only beat her 5 times this month. Getting people all riled up over ‘culture war’ issues is the best way of getting away with murder. Hey, who cares about the carnage in Iraq, there’s ‘the gays’ who are ‘threatening the sanctity of marriage’ !!!! School teachers who might mention evolution ! Children might hear of the existence of gay people! hear that Santa isn’t real! What’s next ? Denying the Easter bunny ? It’s a familiar tactic – directing the attention to a perceived enemy, while robbing the country blind. Of course, these robbers were so utterly stupid that the loot wasn’t enough for them, they had to risk it all in a scheme that’d be perceived as patently absurd to any child.

    I was surprised when Bush, upon being asked who his favorite philosopher was, answered “Jesus, because he changed my heart”. I was rather impressed, because round here, Jesus just mows the lawn. Simmer down, I don’t hate Mexicans, I just think their food claims are fraudulent, they have one dish with ten different names.

    You know, in Bush’s case, the statement “Screw him and the horse he rode in on” would actually be true to life.

  • David Nickol

    George Bush just approved the first military execution since 1961. It’s execution number 156 for Bush, with the first 152 while he was governor of Texas, the next 3 being federal executions he authorized as president, and now this one.

  • David – President-elect Obama also supports capital punishment, and he criticized Kennedy v. Louisiana for outlawing the practice for child rapists. The reason there were not any military executions since 1961, is because the military hadn’t requested one since 1962. I don’t support the death penalty, but it’s not as if Bush is unique. The irony in Kennedy v. LA, of course, was that the Court based its decision on a ‘national consensus’ that both Presidential candidates were apparently not aware of as they promptly criticized it. I think the death penalty should be abolished, but neither of the candidates held that position this year.

  • David Nickol

    President-elect Obama also supports capital punishment

    John,

    I wasn’t making comparisons between Bush and Obama. I was merely stating Bush’s record. If I am not mistaken, Bush is unique, in that he signed more death warrants than any other governor before or since.

  • David Nickol

    If you read the complete account in the New York Times you will see how many people think the new regulations would be a terrible idea.

    . . . . But three officials from the Equal Employment Opportunity Commission, including its legal counsel, whom President Bush appointed, said the proposal would overturn 40 years of civil rights law prohibiting job discrimination based on religion.

    The counsel, Reed L. Russell, and two Democratic members of the commission, Stuart J. Ishimaru and Christine M. Griffin, also said that the rule was unnecessary for the protection of employees and potentially confusing to employers.

    Title VII of the Civil Rights Act of 1964 already prohibits employment discrimination based on religion, Mr. Russell said, and the courts have defined “religion” broadly to include “moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views.”

    Mr. Ishimaru and senior members of the commission staff said that neither the Department of Health and Human Services nor the White House had consulted their agency before issuing the proposed rule. The White House Office of Management and Budget received the proposal on Aug. 21 and cleared it on the same day, according to a government Web site that keeps track of the rule-making process.

    The protest from the commission comes on the heels of other objections to the rule by doctors, pharmacists, hospitals, state attorneys general and political leaders, including President-elect Barack Obama. . . .

    But the National Association of Chain Drug Stores, the American Hospital Association, the American Medical Association, 28 senators, more than 110 representatives and the attorneys general of 13 states have urged the Bush administration to withdraw the proposed rule.

    Pharmacies said the rule would allow their employees to refuse to fill prescriptions for contraceptives and could “lead to Medicaid patients being turned away.” State officials said the rule could void state laws that require insurance plans to cover contraceptives and require hospitals to offer emergency contraception to rape victims.

    The Ohio Health Department said the rule “could force family planning providers to hire employees who may refuse to do their jobs” — a concern echoed by Cecile Richards, president of the Planned Parenthood Federation of America.. . .

    As an example of the policies to which they object, Bush administration officials cited a Connecticut law that generally requires hospitals to provide rape victims with timely access to and information about emergency contraception.

    Gov. M. Jodi Rell of Connecticut, a Republican, said the state law represented “an earnest compromise” between the rights of rape victims and the interests of health care practitioners who had moral or religious scruples against emergency contraception.

    The state attorney general, Richard Blumenthal, a Democrat, said the proposed regulation “would blow apart solutions and compromises that have been reached by people of good will in Connecticut and elsewhere.”

    I wonder if it would be discrimination to ask candidates for a pharmacist’s job which prescriptions they would be willing to fill, or whether you just have to hire them and find out once they are on the job.

  • One can only, although one doesn’t want to, imagine what cranks this opens the door to.

    As far as David’s question goes, here’s the answer: It’d have to be a pharmacist with hardly any record who thinks executive power should be expanded ad infinitum, Academically, he has to have majored in histrionics with a minor in admonishing the sinner.

    Get your own pill, perverts. I only say this because I care.

  • Jeremy

    Whether or not Mr. Bush is taking the right tact to this issue, consience battles are happening here in the US and trends point to them heating up. It is not enough to tolerate, people must participate.
    http://www.wesleyjsmith.com/blog/2008/11/speaking-truth-to-power-european-cases.html

    I personaly know of case where a young woman seeking to get into med school was pointedly asked if her Catholic beliefs would interfere with her performing abortions. We don’t know yet if she will get in, but the mere fact that it was asked in the first place indicates that at least some schools are using it as a gatekeeper question.

  • LOL. The comment section should be entitled “Don’t Pop Our Bush=Satan Balloon!”.

  • David Nickol

    I personaly know of case where a young woman seeking to get into med school was pointedly asked if her Catholic beliefs would interfere with her performing abortions. We don’t know yet if she will get in, but the mere fact that it was asked in the first place indicates that at least some schools are using it as a gatekeeper question.

    Jeremy,

    It would be a violation of federal law for a medical school to discriminate based on religion. I am not a lawyer, but in my opinion, the school has set itself up for a lawsuit by even asking the question. The applicant should probably fully document as best she can whatever communications she has had with the school in advance of its decision.

  • David Nickol

    Pauli,

    I really like the clock on your web site.

  • Jeremy

    David, the discrimination is not based upon religion, but a subset of beliefs. The question was not if she was or wasn’t catholic, the question was would her catholic beliefs interfere with her being willing to perform abortions.

  • Kurt

    so, off topic, I hear the right wingers are putting acorns in the collection plate this weekend for the second collection. cute.

  • David Nickol

    David, the discrimination is not based upon religion, but a subset of beliefs. The question was not if she was or wasn’t catholic, the question was would her catholic beliefs interfere with her being willing to perform abortions.

    Jeremy,

    I don’t believe the antidiscrimination laws can be skirted that easily. On the other hand, from the googling I have just done I have discovered that applicants to medical school should expect to be asked about their attitude toward abortion. It seems to me a question about religion would be out of bounds (although perhaps the applicant volunteered it), but clearly a question about abortion is not.

  • I really like the clock on your web site.

    Thanks, David. I found it in the corner of an old virtual antique store and “fell in love” with it.

  • Jeremy

    I have discovered that applicants to medical school should expect to be asked about their attitude toward abortion.
    Hence the reason for conscience protection laws. You can disagree with the way the president is going about it, but the pressure is on. There is a big push to compel doctors and pharmacists to participate in contraception and abortion, regardless of their religious beliefs.

  • David Nickol

    Hence the reason for conscience protection laws. You can disagree with the way the president is going about it, but the pressure is on. There is a big push to compel doctors and pharmacists to participate in contraception and abortion, regardless of their religious beliefs.

    I will watch this issue carefully. I think it would be an outrage to keep anyone out of medical school because of their religion or their views on abortion. On the other hand, I would not legally protect pharmacists who decided which prescriptions they would and would not dispense. It seems to me the burden should be on them to find a job that will accommodate them.

    It would be outrageous to force a medical student, a doctor, or a hospital to perform abortions. On the other hand, I would not legally protect a doctor or a hospital who refused to tell patients their full range of legal options. For example, if a woman’s life or health is in danger if she does not have an abortion, I would expect her doctor to tell her all the facts. I wouldn’t expect the doctor to perform the abortion, or even necessarily refer her to a doctor who would perform the abortion, but it would be indefensible not to give a patient the complete story.

  • Jeremy

    I would not legally protect pharmacists who decided which prescriptions they would and would not dispense.
    You make it sound like it would be arbitrary? It is not arbitrary.

  • Jeremy

    I think it would be an outrage to keep anyone out of medical school because of their religion or their views on abortion.
    Then why do the ask the question?

  • David Nickol

    Then why do the ask the question?

    Jeremy,

    I don’t know why applicants to medical school are asked about abortion. The only thing I have found so far is an organization called Medical Students for Choice complaining that medical schools pay scant attention to abortion. They say, “In addition, medical schools are simply not addressing the topic; most physicians are graduating with little more than circumstantial knowledge of abortion. Medical Students for Choice® stands up in the face of violent opposition, working to destigmatize abortion provision among medical students and residents, and to persuade medical schools and residency programs to include abortion as a part of the reproductive health services curriculum.”

  • David Nickol

    You make it sound like it would be arbitrary? It is not arbitrary.

    Jeremy,

    There seem to be several state laws, some that allow pharmacists to refuse to dispense certain drugs and devices, and some that require pharmacists to dispense them. Some are apparently vaguely worded. Are the Bush regulations specific? Do they name specific drugs and devices?

    In any case, if I managed a pharmacy, and I wanted to hire pharmacists, I would not want the government telling me I had to hire people who would not dispense legal drugs. It strikes me that this is exactly the kind of government interference conservatives are supposed to be against.

  • All just crumbs for the true believers. Bush is an unmitigated disaster. Unfortunate that McCain had no chance because of him, well and the largely decrepit party base. If only McCain had won in 2000. It is some consolation that I cannot imagine another Bush in any freakin’ high office.

  • S.B.

    1. If you go to regulations.gov and plug in this number: HHS-OS-2008-0011-0001, the first result will be the proposed rule.

    2. If you read the proposed rulemaking order, you’ll see why you can never trust newspaper coverage of regulatory matters. The order explains that the right of conscience is protected under existing law, and has been since the 1970s under acts enacted by Congress. This regulation is merely meant to ensure that health care providers — which have to certify that they are in compliance with every other non-discrimination provision of federal law — also certify that they are in compliance with the 1970s laws as to religious discrimination. Thus, the agency explains:

    The Department also notes that, while many recipients of Department

    funds currently must certify compliance with federal nondiscrimination

    laws, federal conscience protections are not mentioned in existing

    forms. For example, Form PHS-5161-1, required as part of Public Health

    Service grant applications, requires applicants to certify compliance

    with all federal nondiscrimination laws, including laws prohibiting

    discrimination on the basis of race, color, national origin, religion,

    sex, handicap, age, drug abuse, and alcohol abuse or alcoholism. The

    Department seeks to raise awareness of federal conscience laws by

    specifically including reference to the nondiscrimination provisions

    contained in the Church Amendments, PHS Act Sec. 245, and the Weldon

    Amendment in certifications currently required of most existing and

    potential recipients of Department funds.

    Once you realize what the proposed rule would really do, statements like this look completely bizarre and dishonest:

    But three officials from the Equal Employment Opportunity Commission, including its legal counsel, whom President Bush appointed, said the proposal would overturn 40 years of civil rights law prohibiting job discrimination based on religion.

    3. I too am curious as to why Bush didn’t propose this rule earlier.

    4. Any of the Obama defenders up to the task of explaining why it’s a good idea for health care providers NOT to have to obey existing law protecting doctors and other health care workers from being required to participate in abortions, to provide abortifacients, etc.? That’s what your guy wants.

  • c matt

    Are there that many docs and pharmacists out there that have such aceuplea that this is really a problem? Pp doesn’t seem to have a problem murdering hundreds of thousands every year, and I am unaware of a conteceptive crisis, at least not in the sense of not enough to go around. Its just another way to cram this societys sick views down everyones throats.

  • jeremy

    There seem to be several state laws, some that allow pharmacists to refuse to dispense certain drugs and devices, and some that require pharmacists to dispense them.
    So you agree it is not arbitrary?

    In any case, if I managed a pharmacy, and I wanted to hire pharmacists, I would not want the government telling me I had to hire people who would not dispense legal drugs.
    The real problem is that some state laws REQUIRE pharmasists to go against both their faith and their reason to actively participate in a grave moral evil. I’ve seen news articles where people are making a stink about a catholic pharmacy opening up because they would not dispense contraceptives, and someone might go their anyway and be turned down for contraceptives or plan B. You may not like the idea of conscience laws, but I’m sure that you see why people are in favor of legal protection of conscience since some are actively advocating for sanctions against those who will not participate in moral evils.

  • David Nickol

    If you read the proposed rulemaking order, you’ll see why you can never trust newspaper coverage of regulatory matters. The order explains that the right of conscience is protected under existing law, and has been since the 1970s under acts enacted by Congress.

    S.B.

    You may not be able to trust newspaper coverage, but you also can’t trust what the regulation itself claims it is going to do. Check out for example, the objections raised by the American Hospital Association.

    Opponents say that although the regulation is claimed to be a clarification of existing laws, it vastly expands the scope far beyond what congress intended when it created those laws. It overlaps with existing and reinterprets civil rights laws in this area that have been fine-tuned for decades, which is why the EEOC complained. And it conflicts with some existing state laws that define what pharmacists and other healthcare workers may and may not do. It also requires certification, which creates new paperwork, adding new administrative costs for every entity covered by the regulation,

    Several articles I have read point out the following:

    The preamble also defines, very broadly, the types of individuals that may be involved in an objectionable procedure. The preamble provides an example of a health care worker who autoclaves (sterilizes) surgical instruments used in an objectionable procedure as someone that “assists in the performance” and is thereby protected under the provider conscience clause. The preamble language further defines that any activity with a reasonable connection to the objectionable procedure, such as referrals and training, can also be considered objectionable. This broad definition of “assist in the performance” suggests that any individual invoking the conscience clause protections is under no obligation to refer the patient to other practitioners, pharmacists or hospitals from whom the patient could receive care. The AHA objects to any proposal that releases a practitioner, for any reason, from an obligation to provide or assist patients with a referral or other information that would allow the patient to receive needed health care services.

    Hospitals, clinics, and pharmacies could be obligated to hire people who would not do their stated jobs. For example, in the Walgreens drugstore where I fill my prescriptions, it is often not the pharmacists who actually hands over the prescription. Under this new interpretation of the regulation, the clerk who retrieves the prescriptions and rings them up on the cash register would be permitted to decide which ones I could have and which ones I couldn’t. Walgreens could be forced to hire someone who declares in advance that they would not ring up a whole array of drugs and devices (Viagra, AIDS medications, condoms, birth control pills, sexual lubricants, and so on). What you could get at a pharmacy would not merely depend on the pharmacist, but the clerk who was on duty.

    Emergency rooms, where the unpredictable occurs all the time, could not be confident that in a life-threatening situation, one of their workers would not invoke the regulation to refuse to do a specific task. Hospitals could not refuse to hire workers who would not comply with patients’ DNR (“do not resuscitate”) wishes. Catholic medical ethics does not require life and suffering to be unnecessarily prolonged by heroic measures, but if you had a loved one dying in the hospital with DNS instructions, whether or not those instructions would be followed could depend on who was on duty at the time.

    I too am curious as to why Bush didn’t propose this rule earlier.

    A perfectly understandable reaction. What do you think the answer is?

    Any of the Obama defenders up to the task of explaining why it’s a good idea for health care providers NOT to have to obey existing law protecting doctors and other health care workers from being required to participate in abortions, to provide abortifacients, etc.? That’s what your guy wants.

    Have you stopped beating your wife? Of course existing laws should be obeyed. This regulation is not about enforcing existing laws, which is why the Bush-appointed legal counsel to the EEOC objected to it and why no one involved in interpreting and enforcing those existing laws was consulted in the creation of this new regulation. I am an Obama supporter, but you don’t have to support Obama to believe this is a deeply flawed (and perhaps ill-intentioned) regulation.

  • David Nickol

    The real problem is that some state laws REQUIRE pharmasists to go against both their faith and their reason to actively participate in a grave moral evil.

    Jeremy,

    And would this federal regulation override state laws? (And is overriding state laws what the Bush administration has been in favor of?) The American Hospital Association points out that the new regulation does not address the question of what happens when state laws and the federal regulation conflict. The AHA also raises this interesting point:

    [T]he Medicaid program provides coverage for prescription contraceptives. How does the written certification anticipate hospitals’ efforts to comply with such federal Medicaid requirements?

  • S.B.

    Does Walgreens get federal funding from HHS? If not, it seems a complete strawman to suggest that it or other pharmacies would be affected.

  • S.B.

    Opponents say that although the regulation is claimed to be a clarification of existing laws, it vastly expands the scope far beyond what congress intended when it created those laws.

    Yes, and it’s utterly routine for industry and its affiliated special interest groups to claim that some proposed federal regulation would be horribly broad, unworkable, etc. Why take such claims at face value?

  • S.B.

    You can find EEOC’s letter on its website (eeoc.gov), but I see no reason to treat that letter as anything other than turf protection.

  • David Nickol

    Does Walgreens get federal funding from HHS? If not, it seems a complete strawman to suggest that it or other pharmacies would be affected.

    S.B.

    I don’t know about Walgreens in particular, but the EEOC letter says that 58,109 pharmacies (chain and independent) and 234,200 doctor’s offices will be affected by the regulation. The scenario I presented is hardly a straw man.

    Yes, and it’s utterly routine for industry and its affiliated special interest groups to claim that some proposed federal regulation would be horribly broad, unworkable, etc. Why take such claims at face value?

    Entirely disinterested parties are unlikely to go to the trouble of commenting on proposed regulations. Of course those who will be impacted are obviously going to raise the objections. Do you think the USCCB exhaustively analyzed how the proposed regulation would affect emergency rooms, doctor’s offices, family planning clinics, hospitals, and pharmacies before they endorsed the regulation?

    If you want to have an actual discussion of this regulation, you can’t just dismiss criticisms because they are made by interested parties or even organizations you don’t like. Some of the critics, by the way, are the American Medical Association, the American Academy of Pediatrics, the American Nurses Association, the American Hospital Association, and AARP.

    You can find EEOC’s letter on its website (eeoc.gov), but I see no reason to treat that letter as anything other than turf protection.

    Conservatives (like George Bush) are always complaining about too much government regulation, and here is a case where HHS is issuing regulations about matters that are already the EEOC’s responsibilities. It is not “turf protection.” It’s the EEOC trying to avoid confusion and maintain sane and competent government by avoiding overlapping and inconsistent regulations.

  • S.B.

    If you want to have an actual discussion of this regulation, you can’t just dismiss criticisms because they are made by interested parties or even organizations you don’t like.

    The rulemaking order quotes several existing laws that provide the same protections and that are being enforced here, i.e., healthcare workers who work somewhere that gets federal funding already do have a right of conscience. The proposed rule strikes me as a reasonable interpretation of existing law. Sure, the people who might have to actually obey federal law are complaining, but every last argument that they make (about the horrible things that would supposedly happen if anyone had a right of conscience) would equally apply to what federal law has said since the 1970s. If you don’t like that — if you really want to force unwilling healthcare workers to participate in abortions or sterilizations or euthanasia or whatever — go ahead and try to change the law.

    As for funding, I do see that the regulation might apply to entities that get federal funding via Medicare, so that might be the way in which pharmacies would be affected.

    As for EEOC, its letter directly admits that “We recognize that the HHS Provider Conscience Regulation would regulate areas distinct from employment, such as federal and state health funding decisions, and would protect non-employees, such as institutional health care providers and independent professionals, when HHS funds are involved.” The rest of the letter basically amounts to this: “We enforce employment discrimination under a different statute, and therefore you should butt out.”

    But there’s nothing that says an agency’s rules and governing statutes can’t provide a different or higher level of protection, even if that overlaps with what another agency is doing. For instance, the Department of Labor requires government contractors to have an affirmative action program; without looking at that rule in detail, I’d bet that it in some overlaps with something that EEOC does. Big deal.

  • David Nickol

    Sure, the people who might have to actually obey federal law are complaining, but every last argument that they make (about the horrible things that would supposedly happen if anyone had a right of conscience) would equally apply to what federal law has said since the 1970s.

    S.B.,

    You have totally ignored the point made by the critics of the regulation that it gives a much broader interpretation of the existing federal laws than congress intended, than regulators have enforced, and than courts have interpreted.

    If you don’t like that — if you really want to force unwilling healthcare workers to participate in abortions or sterilizations or euthanasia or whatever — go ahead and try to change the law.

    But I thought you were claiming this regulation did nothing more than enforce existing federal laws. If that is the case, why is the regulation needed?

    You have not dealt with any of the specific objections of health care providers to the law. You have dismissed them all with the wave of a hand saying, “Oh, they just don’t want to have to obey federal law.”

    You also have not answered your own question. Why now? Why is this regulation suddenly needed at the end of the second Bush term? Have the three federal laws this regulation claims merely to be reiterating not been adequately enforced during the Bush years? Whose responsibility was it to enforce them, and why weren’t they doing their job?

  • S.B.

    In a few respects, the rule may be “broader” than the statutes were previously interpreted, but that’s a routine part of lawmaking. I’m absolutely positive that an Obama administration will find numerous ways to interpret other civil rights and anti-discrimination laws (it’s all in whose ox is gored, isn’t it) in a way that is “broader” than under Bush. That doesn’t really tell us anything about whether the “broader” interpretation, in any given instance, is actually correct . . . it may or may not be, but it’s not enough just to say “it’s BROADER!,” as if that settles anything. The only important point is whether the regulation is consistent with the language of the statute(s), and here I think it is.

  • If only those were the most important problems at hand….
    I still like McCain (Palin’s a bit of a party favorite, so to speak), but the Republican party ought to be in the desert for a long time, until it comes back without all this culture war nonsense that is of no consequence whatsoever. Not to mention that it’s purely cynical anyway. I doubt Rove cared about any of the song and line dance they were peddling.

  • I guess once Bush is finally gone, you Bush Deranagement Syndrome sufferers will need to find something else to take up your time, like say… getting a life.

  • David Nickol

    That doesn’t really tell us anything about whether the “broader” interpretation, in any given instance, is actually correct . . . it may or may not be, but it’s not enough just to say “it’s BROADER!,” as if that settles anything.

    Suppose you own a drugstore and want to hire pharmacists. Suppose you interview pharmacists and hire one. Unbeknownst to you, the pharmacist believes that AIDS and other sexually transmitted diseases are punishments from God, and he will not dispense anti-HIV drugs at all or antibiotics to customers he suspects are being treated for other sexually transmitted diseases. As a drugstore owner, you find out your pharmacists is refusing to fill prescriptions. What can you do?

  • S.B.

    If there is even a single real-life example of such a person in the entire United States, I’ll be surprised. I know there are some pharmacists nationwide who don’t want to hand out emergency contraception because of the potential abortifacient effect, but even that “problem” hasn’t affected more than a few pharmacies nationwide. So on the one hand, yes, that does diminish the alleged need to protect such a small number of pharmacists. On the other hand, it makes the objectors look like hysterical Chicken Littles.

  • David Nickol

    S.B.,

    So what you seem to be saying is that in order to protect a small number of pharmacists who don’t want to dispense the morning-after pill, you approve of a regulation that broadens the scope of existing laws so that anyone even remotely involved in anything they claim to find morally objectionable can refuse to do their job, with their employer unable to do anything about it.

    A hypothetical example like the one I gave is intended to illustrate a principle. Saying there would be no real-life instance of that particular case is not sufficient.

    And by the way, how does the regulation protect pharmacists who refuse to dispense the morning-after pill in those states in which there are laws requiring pharmacists to do so? The question is not addressed, and so you can’t even say that this regulation solves the problem you mention.

    Note the following:

    Moreover, the regulation places no conditions whatsoever on these refusal rights. If that interpretation were to hold sway, all sorts of illogical scenarious could be possible. In terms of the provision of health care, family planning clinics or even state family planning programs could be forced to hire employees unwilling to provide, discuss or even schedule appointments for contraception. Hospitals could be fored to hire personnel refusing to hoonor their patients’ end-of-life directives. Pharmacies could be forced to hire clerks refusing to ring up purchase for AIDS medication. Further, health care entities could be hindered in their efforts to ensure that patients are served regardless of their marital status, sexual orientation, age or HIV status — and thus complying with federal or state antidiscrimination laws and employer’s own antidiscrimination policies.

    Similarly extreme scenarious could affect research institutions. Research laboratories could be forced to hire staff members opposed to conducting, or in any way supporting, the very research conducted there, including research involving animal testing, vaccination, human embryonic stem ceells, sexually transmitted infection, contraception, in vitro fertilization, protction from biological weapons or anythin else to which some Americans may object.

    Suppose we stick to something very plausible, like a Catholic pharmacist who refuses to dispense prescription contraceptives. Say you own a drugstore, and you have absolutely no objection to selling contraceptives. What would you as the store owner be able to do if your pharmacist refused to dispense prescription contraceptives? By the way, the Catholic Church has no objections to these same drugs being used for noncontraceptive purposes. Suppose a woman is prescribed the pill for endometriosis, not for contraception. Does the pharmacist refuse to fill the prescription, or does he pry into the woman’s personal affairs to try to determine what she intends to use the drug for?

    You don’t seem to be concerned about the rights and reasonable expectations of employers or patients. You seem to be in favor of the regulation simply because you believe the intention behind it is to protect people’s right to follow their consciences, but you don’t seem to be concerned about any of the possible ramifications.

  • S.B.

    Federal law already sweeps very broadly:

    “[n]o individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by [the Department] if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”

    That’s right there in federal law, since the 1970s. It’s not something the Bush administration invented. Now, why doesn’t the term “individual” encompass any “individual”? Why doesn’t “health service program” cover a wide range of healthcare? Don’t tell me about the parade of imagined horribles; tell me why the statutory language doesn’t, in fact, sweep as broadly as it seems to.

    And by the way, how does the regulation protect pharmacists who refuse to dispense the morning-after pill in those states in which there are laws requiring pharmacists to do so?

    If there’s a conflict between federal and state law, federal law preempts. That’s part of the Constitution. Indeed, at first glance, there seems to be a plausible argument that such state laws might already be preempted by federal law, regardless of whether this new regulation is approved.

  • David Nickol

    That’s right there in federal law, since the 1970s. It’s not something the Bush administration invented. Now, why doesn’t the term “individual” encompass any “individual”? Why doesn’t “health service program” cover a wide range of healthcare? Don’t tell me about the parade of imagined horribles; tell me why the statutory language doesn’t, in fact, sweep as broadly as it seems to.

    Once again, if federal law already provides the protections you claim, why is this new regulation necessary? Has the Bush administration been lax in enforcing federal law? Why don’t they do a better job, instead of issuing new regulations? How have states been able to get away with passing their own laws requiring pharmacists to dispense certain drugs if we have existing federal laws that override the state laws?

    The answer is that while the regulation claims simply to be requiring compliance with existing laws, it defines provisions in those laws in ways (a) which were not intended when the laws were written, (b) in ways which they have never been defined before and also (2) in ways that put a much heavier burden on health care providers at the expense of patients’ expectations and rights.

    Here is

    The Regulation extends the right to refuse health services to a broader range of workers than previously permitted, including those who are only tangentially related to the provision of health care. The Regulation defines the term “assist in the performance”5 for the first time, and also defines some of the terms included in this definition and used elsewhere in the statutes, including, “individual,”6 “workforce,”7 and “health service/health service program.”8 In the description of the definition for “assist in the performance,” the Department states that it “seeks to provide broad protection for individuals’ consciences,” and that it “seeks to avoid judging whether a particular activity is genuinely offensive to an individual.”9 In defining “health service program,” the Department states that it should be understood to “include an activity related in any way to providing medicine, health care, or any other service related to health or wellness…”10

    By defining all of these terms broadly, the Regulation expands the protection of the Church Amendment to individuals far outside the scope of those who would have reasonably been considered to provide health services under the current law, such as physicians, physician’s assistants, and nurses. These new definitions could allow almost any worker in a health care setting to refuse to provide services to a patient based on his or her religious or moral beliefs. Indeed, one of the two examples in the description for the definition of “assist in the performance,” is of an employee whose task it is to clean instruments following a particular procedure.11 The Regulation would thus expand the right to refuse to a range of workers performing a variety of services, such as receptionists who make appointments, claim adjustors at health insurance companies, and custodians who work in clinics and hospitals. Under these proposed regulations, health care institutions could struggle to effectively provide care, and women could be delayed or even prevented from receiving reproductive health care.

    The Regulation’s extension to the actions of such a broad range of non-medical personnel who “assist in the performance of” objectionable procedures clearly illustrates the proposal’s lack of consideration for the needs of patients; in no other area of medicine are tangentially related individuals allowed to interfere with the provision of services in a way that may delay or deny health care. The Regulation goes too far in extending the right to deny services to individuals who are marginally related to the medical care being provided. This broad expansion could lead to serious disruptions in care and hamper the ability of health care institutions to meet the needs of patients. Once again, the Regulation tips the balance perilously away from what is best for patients, and for this reason should be rejected.

    And here is the opinion of the New Mexico Attorney General, who has a similar view, and expresses some real-life problems with the regulation.

    The proposed regulations further expand the law beyond congressional intent by adopting a broad definition of what it means to “assist in the performance” of an objectionable activity to include “counseling, referral training, and other arrangements.” (Proposed Section 88.2) This expansive definition creates an environment in which individuals who only tangentially assist in patient care, such as employees who stock inventory or schedule appointments and process medical claims could claim that they are entitled refuse assistance. The proposed regulations also extend the right to refuse to volunteers and trainees. These extensions are simply not provided for in the Refusal Amendments and the executive would exceed its authority to promulgate regulations in adopting such regulations.

    The proposal further expands the types of entities subject to these provisions to include pharmacies and insurance companies among others, potentially allowing individuals who process claims to object to working on claims involving contraceptives. There is no explicit language in the statutes or any legislative history to support such a broad interpretation of the statutes.

    New Mexico is primarily rural, with limited healthcare available in the outlying areas and our population of uninsured persons dependent upon publicly funded health care is well above the national average.2 Our state has the 4th highest teenage pregnancy rate of any state.3 The practical effect of the proposed regulations would be to place a hardship burden on small, rural health care providers that could ultimately close their doors. If employees massively refuse to provide services in the small clinics across the state, or if these clinics lose their funding due to an accusation of discrimination toward refusals, large geographic areas can be left with little or no services available.

    In summary, the regulations go well beyond “interpretation and clarification” and they extend the refusal clause legislation to cover personnel, entities, and types of health care that the underlying statutes never contemplated. This extension and expansion is ultra vires and the proposed regulations are invalid due to this expansion of scope beyond the congressional intent in the underlying statutes.

    Once again, you haven’t answered the question raised by a number of people, including yourself, as to why this is being done at the end of Bush’s second term instead of at the beginning of his first term.

    Also, this whole matter is either moot or nearly so. Hillary Clinton has introduced legislation to block this regulation, and if that succeeds, it will never go into effect. If it does go into effect, Obama will rescind it, although that could take three to six months. So what point is the Bush administration trying to make. If there is actually a new problem to be addressed, why don’t they say so loud and clear, instead of claiming that they are only trying to assure compliance with existing laws? It doesn’t make any sense.

  • David Nickol

    We have seen no conservative comments (Blackadder) on whether it is a good idea to create new paperwork for all affected health care suppliers to certify compliance with the new regulation. It is one thing to issue regulations. It is another thing to require that everyone certify compliance.

  • S.B.

    Once again, you haven’t answered the question raised by a number of people, including yourself, as to why this is being done at the end of Bush’s second term instead of at the beginning of his first term.

    So you’re faulting me for not answering a question that I raised? That doesn’t quite make sense.

    Anyway, for all your blockquotes, you’re not explaining why the statutory term “individual” should mean only doctors and nurses [which goes to the point that maybe the statutory language has been interpreted too narrowly up till now], and why some person of more lowly status shouldn’t nonetheless be entitled to decline to assist in an abortion.

  • Sarsfield

    David Nickol said -“no one involved in interpreting and enforcing those existing laws was consulted in the creation of this new regulation.” As someone involved in interpreting and enforcing those existing laws I can say that I and many others similarly involved were, in fact, consulted in the creation of this new regulation. Why is it necessary? Because previous regulations and statutes contained no private right of action. In other words, enforcement depended on a government bureaucrat deciding to take the bull by the horns and risk political pressure that would undoubtedly follow. The new regulation would permit private litigants to bring what’s know as a qui tam action, a form of legal action available to private parties when government fails to enforce its own regulations.

    Fear not, however, Mr. Nickol. None of the nightmare scenarios you envision will ever come to pass because, as you point out, Obama and company will never permit this regulation to see the light of day. In fact, the next four years promise an exponential increase in the harassment of pro-life health care workers. Oh well, that’s good for my business. Thank you, Faithful Citizens.

    It’s interesting that Sen. Clinton is planning to introduce legislation to quash the regulation in the unlikely event it goes into effect. Back in ’04 – ’05, she was a co-sponsor of legislation that was designed to protect the right of pro-life pharmacists to avoid dispensing prescriptions to which they have moral objections. Sens. Kerry, Hatch, Santorum and, I believe, Schumer were other sponsors. This was in the wake of Kerry’s defeat at a time when some in the Dem party were thinking that maybe pro-choice absolutism was not necessarily the way to go. Mais, on a change tout cela! Should be a fun four years.

    You are correct, of course, to point out the lukewarmness of the Bush administration’s enforcement of existing regulations protecting the right of conscience. Yet I know of specific cases in which EEOC has upheld those rights in situations you apparently would find outrageous. No doubt the new regime will do a better job advancing its ideology.

  • David Nickol

    Anyway, for all your blockquotes, you’re not explaining why the statutory term “individual” should mean only doctors and nurses [which goes to the point that maybe the statutory language has been interpreted too narrowly up till now], and why some person of more lowly status shouldn’t nonetheless be entitled to decline to assist in an abortion.

    S.B.,

    Perhaps Sarsfield can tell us if current law protects only doctors and nurses from being required to assist in abortions. I would hope that current law protects anyone from having to cooperate in abortion formally and materially (to use terms many of us became aware of during the run-up to the election), but as for remote material cooperation, I would have to know the circumstances.

    In any case, it is not laws that protect people from having to assist in abortions that I am concerned about. It is regulations that are so broad that they allow the cashier at the drugstore to decide which prescriptions he or she will ring up on the cash register.

  • David Nickol

    You are correct, of course, to point out the lukewarmness of the Bush administration’s enforcement of existing regulations protecting the right of conscience. Yet I know of specific cases in which EEOC has upheld those rights in situations you apparently would find outrageous. No doubt the new regime will do a better job advancing its ideology.

    Sarsfield,

    Could you perhaps comment on some of the criticisms of the regulation? There were two criticisms that were in almost every complaint I read. One was that the regulation interpreted terms in the federal laws much more broadly than they ever had been interpreted before. The other was that there was nothing in the regulation that took into account the expectations and needs of the patients.

    In fact, the next four years promise an exponential increase in the harassment of pro-life health care workers.

    Could you give some examples of the kind of things that are happening now that you feel will be on the increase?

  • Paladin

    David Nickol wrote, in reply to S.B.:

    Hospitals, clinics, and pharmacies could be obligated to hire people who would not do their stated jobs. For example, in the Walgreens drugstore where I fill my prescriptions, it is often not the pharmacists who actually hands over the prescription. Under this new interpretation of the regulation, the clerk who retrieves the prescriptions and rings them up on the cash register would be permitted to decide which ones I could have and which ones I couldn’t.

    I admit, I’m working under a handicap, here… since I don’t know if you’re Catholic or non-Catholic; but I’ll assume (until corrected) that you *are* Catholic, and that you wish to uphold Church teaching in these matters.

    Your hypothetical sales clerk would be deciding “which ones you could have”; s/he would be deciding whether to cooperate in objective evil (which the Church–and any rightly formed conscience–forbids her to do). If you were hypothetically hell-bent on getting “morning-after” pills (and other “necessities”), there are more than enough death-tolerant pharmacies to oblige.

    Simply put: “do their stated jobs” can entail true, objective moral evils (i.e. not just the opinion of the Pope, Bishop X, Father Y, etc.), such as in Oregon [and now Washington state], where health care workers are called upon to assist in suicides. This is simply wrong, and no Catholic could support any civil law which mandated any such thing. FOCA will probably be another such example, all too soon; do you want your local health care worker to be forced to assist at an abortion, against her will?

    Walgreens could be forced to hire someone who declares in advance that they would not ring up a whole array of drugs and devices (Viagra, AIDS medications, condoms, birth control pills, sexual lubricants, and so on).

    Assuming, for the sake of argument, that your extreme-sounding list is completely accurate (“AIDS medications?” By what possible moral stretch would this be done?): I’d assume that the companies would need to keep some sort of record of what each employee was unwilling to dispense, and act accordingly (with warnings, etc.). I’d also seriously doubt that a person who’s unwilling to dispense 80% of all known pharmacy-related products would be working at a pharmacy in the first place…

    I realize that you were probably highlighting extremes, for the sake of warning against a “slippery slope”, but just from the Catholic point of view: the standard usage of condoms and birth control pills is objectively evil, and I can’t fathom anyone’s just reason for lamenting their non-sale.

    Emergency rooms, where the unpredictable occurs all the time, could not be confident that in a life-threatening situation, one of their workers would not invoke the regulation to refuse to do a specific task. Hospitals could not refuse to hire workers who would not comply with patients’ DNR (”do not resuscitate”) wishes. Catholic medical ethics does not require life and suffering to be unnecessarily prolonged by heroic measures, but if you had a loved one dying in the hospital with DNS instructions, whether or not those instructions would be followed could depend on who was on duty at the time.

    You are aware that, in general, “Do Not Resuscitate” orders often contradict Catholic teaching, in this matter? CPR, etc., are not usually considered “extraordinary”.

    I also wonder why you first warned against dysfunctions in “life-threatening” situations, but you then move to an example where the supposed “ill” is an attempt to *preserve* life–not “threaten” it.

  • Paladin

    Whoops… sorry about the lack of “close bold” HTML tag, in that last message!

  • Paladin

    (*argh!*)

    The above should be changed to: “Your hypothetical sales clerk would NOT be deciding “which ones you could have”

    Back to typing class, and memory upgrades, for me…

  • David Nickol

    Paladin,

    Whether or not I am Catholic (I am sure different people would have different opinions on that question), I generally try to stay within “orthodox” Catholic thought, and I think I have done so here, or at least attempted to. I would be more than grateful to anyone who points out where I have contradicted Catholic teaching.

    It’s my understanding that the federal laws this regulation was based on, and the way they have been interpreted over the course of decades, have attempted to balance the rights and expectations of employers, employees, and patients. I believe the laws were applicable to abortion and sterilization. As I understand this regulation, it does not attempt balance, but gives an unlimited right to refuse to do a broad range of tasks (not all of which can necessarily be anticipated in advance) to people who are not necessarily even directly involved in the tasks they object to. I am entirely in favor of making reasonable efforts to accommodate conscience, but from everything I have read, this regulation is deeply flawed.

    Your hypothetical sales clerk would be deciding “which ones you could have”; s/he would be deciding whether to cooperate in objective evil (which the Church–and any rightly formed conscience–forbids her to do).

    I believe you are wrong here. Catholic thought over centuries has recognized that you can’t live in this world without in some ways cooperating with evil and has developed principles to try and make reasonable assessments of what constitutes impermissible and permissible actions that involve cooperation with evil. For a cashier in a drugstore, ringing up a customer’s purchase of contraceptive drugs or condoms does not meet the conditions for impermissible cooperation with evil.

    You are aware that, in general, “Do Not Resuscitate” orders often contradict Catholic teaching, in this matter? CPR, etc., are not usually considered “extraordinary”.

    On the contrary, I think that DRN orders, especially when terminally ill patients are involved, are probably very much in line with Catholic medial ethics the vast majority of the time. Note the following from the USCCB document Physician-assisted Suicide: The Wrong Approach to End of Life Care

    Honoring a person’s wishes regarding burdensome interventions, such as cardiopulmonary resuscitation (CPR) or ventilatory support neither hastens death nor prolongs life. In such situations, the public often has a misconception of the impact of some medical interventions. Our inability to extend life or even to predict our ability to do so is far different from the impression one might get from watching prime-time television. Oftentimes medical interventions may actually cause more suffering and even unintentionally hasten death. Reviews of the evidence on the use of feeding tubes and CPR in frail older adults have made this abundantly clear. What is important in providing care at the end of life is that physicians maintain the patient-physician relationship no matter what course the patient finally chooses, short of participating in suicide. Withdrawing or withholding treatments, e.g. respirators, CPR, and even hydration or nutrition at the request of a terminally ill patient or the patient’s surrogate can be consistent with professional principles and are supported by the American Medical Association’s Code of Medical Ethics.

    End-of-life care requires many difficult decisions on the part of the dying individual, their family, and the patient’s doctor. By the way, CPR and other resuscitation methods are almost 100 percent effective on television, but the success rate in real life is somewhere in the 20 to 40 percent range. And CPR is sometimes only partially effective, restarting the patient’s heart but leaving them in a coma. It can be brutal, especially on a frail, elderly patient. To think that the nurse on duty should be able to second-guess the doctors and the family and call for resuscitation when the decision has been made to forego it is appalling.

  • David Nickol

    Here’s an article titled Health Care with a Conscience about protecting Catholic hospitals from pressures from “an increasingly hostile public health establishment with very different values.” Jonathanjones02 calls attention to a condensed version appearing in First Things,and this is the complete article from The New Atlantis. It discusses the Provider Conscience Regulation but covers a lot more than that.