Leavitt Promulgated Midnight “Right to Refuse” Rule

Despite the opposition of women’s health advocates and many other U.S. citizens who submitted comments in opposition to this rule, Health and Human Services Secretary Michael Leavitt announced on Thursday, Dec. 18th that he was implementing his ‘conscience protection’ rule for the health care industry. The rule which was published in the Federal Register that same day, will take effect the day before President Bush leaves office. President-elect Obama has already indicated his criticism against this rule and said he was “committed to ensuring that the health and reproductive rights of women are protected.”

This rule not only says providers can be charged with discrimination if an employee is pressured to participate in care that is “contrary to their religious beliefs or moral convictions,” it also broadens the scope of ‘who’ can exercise their beliefs, from the janitor who cleans the operating rooms and doctors offices, to the person who sterilizes the instruments, to the receptionist scheduling appointments, to the pharmacist who might be asked to fill a prescription. This rule also sets a new precedent. Doctors who conscientiously object to providing certain health services on religious grounds no longer have an obligation to refer that patient to someone who might.

So let’s see how that plays out. Let’s say you’re a woman who lives in rural Nevada. Let’s also say you’re covered by an HMO where you have to select a primary care physician (PHP) and to see a different doctor, you must have a referral from your PHP. Now, let’s say your PHP has certain religious convictions that you’re unaware of and that would prevent him from performing (or referring you for) an abortion under ANY circumstances, or from providing emergency contraception for rape victims, or for providing invitro fertilization services, or even for prescribing birth control pills. Given the realm of possible women’s health services, the list could go on and on. Once in effect, this rule would mean, that your doctor not only doesn’t have to provide these services (which is the case today under existing law), but he would no longer have to provide a referral (the new precedent in this rule). He also wouldn’t be required to provide you will full medical options. For example, if you were pregnant and the fetus had a severe abnormality that might affect your decision-making whether to carry the fetus to full-term, he doesn’t have to tell you anything. It also means you paid an insurance premium for medical services for which you can no longer be reimbursed if you can’t get that PHP to provide you with a referral slip.

Now let’s take it a step further. Remember, this new rule will broaden “who” can exercise their religious convictions to prevent you from receiving certain services. Let’s say you call your doctor’s office to make an appointment. The first thing the receptionist is going to say is “… and why is it you need to see the doctor?” When you explain that you want to see the doctor to explore potential contraceptive options, she’ll be able to legally refuse to make the appointment if she opposes the use of contraception based on religious grounds.

But, we haven’t yet seen the second foot fall. I’m waiting to see how the insurance industry will view this potentially lucrative Christmas present from HHS Secretary Leavitt. He has indicated in his blog posts about the rule, that it is to be intended to be interpreted ‘broadly.’ Thus, the insurance industry, which provides funding that could enable certain services, could choose to exercise their religious beliefs and refuse to pay for certain women’s reproductive health services. So, if you could find a PHP who would provide you with full information and options, your insurance policy would deny any payment.

I realize that the constitution guarantees us ‘freedom of religion’ … but what the women of this nation truly need is ‘freedom from religion.’ This rule of law takes it well more than one step too far. It gives health professionals and everyone who serves them more rights than women, and relegates women’s rights to those of second-class citizens. Under this rule of law, we’ll no longer have access to full reproductive health information and services. We’ll have available to us only what the religious convictions of our provider dictates we can have. I, for one, believe that rule is an affront to the women of this nation and that it is unconstitutional.

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