The Obama administration announced that it will repeal federal “conscience rules” designed to prevent health organizations from discriminating against doctors who, for moral or religious reasons, refuse to provide services such as abortion and birth control.
The regulations were put in place in the waning months of the Bush administration, and Planned Parenthood,
Scientific American, and various allied liberal interests have attempted to characterize the rules as “midnight regulation” — changes by an outgoing presidential administration made in an attempt to influence the policies of the incoming administration. But that is not an accurate characterization of these rules, says former HHS spokesman Kevin Schweer, who notes that discussion of the rules began in 2007.
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The new rules were targeted at enforcing existing freedom-of-conscience rules in response to specific attempts to undermine them. Concern had been brewing for some time about the possible erosion of established conscience rights. (For more information on existing conscience regulations, see
this explanation in the Federal Register, specifically the background contained in the introduction). Schweer points to the fact that in 2007 the American College of Obstetricians and Gynecologists (ACOG) issued Committee Opinion No. 385, “The Limits of Conscientious Refusal in Reproductive Medicine,” which reads, in part:
Physicians and other health care providers have the duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that patients request. Providers with moral or religious objections should either practice in proximity to individuals who do not share their views or ensure that referral processes are in place.
The next month, the American Board of Obstetrics and Gynecology (ABOG) issued new requirements for board certification. ABOG rules state that a physician may be denied certification if “an individual has had their Diplomate status revoked by the American Board of Obstetrics and Gynecology for cause. . . . Cause in this case may be due to, but is not limited to, licensure revocation by any State Board of Medical Examiners, violation of ABOG or ACOG rules and/or ethics principles or felony convictions.”
“That’s what became the flashpoint,” Schweer says. Members of Congress and HHS immediately began requesting that ABOG clarify whether the new ACOG policy would be used to decertify pro-life ob-gyns. In March 2008, HHS secretary Michael Leavitt sent ABOG a letter demanding that they clarify the rule.
Norman Gant, executive director of ABOG, told National Public Radio that HHS “got it all wrong,” noting that ACOG’s ethics-committee opinion wasn’t binding. “We do not restrict access to our exams for anyone applying for initial certification, or maintenance of certification, based on whether they do or do not perform an abortion,” Gant told NPR. “We do not base this upon whether they do or do not refer patients to an abortion provider if they do not choose to do abortions.” That was enough for NPR to conclude that “ob-gyns who don’t want to perform or refer for abortions are not at risk of losing their board certification after all.” But a careful reading of NPR’s own interview with Gant hardly inspires confidence: “Gant, himself an ob-gyn, said he personally had no problem with the November ethics statement, particularly the idea that ob-gyns should be ethically bound to provide contraception.”
Given concerns about the language of new certification requirements and suspicions that ABOG might be less than straightforward in its explanation of them, the new conscience rules put forward by HHS were a simple, straightforward protective measure to keep private licensing boards from undermining doctors’ freedom of conscience in order to push their own pro-choice agendas. Predictably, little of this background has been evident in the media coverage. In the New York Times’s reporting, there is no mention of the sequence of events that prompted the rules — a crucial omission that serves only to further the “midnight regulation” myth.
