National Health Law Program Releases Statement
on “Conscience Clause” Regulations

NHeLP Commends Secretary Kathleen Sebelius for new HHS regulation

This statement can be attributed to Susan Berke Fogel JD, NHeLP Director, Reproductive Health. Click here for a PDF.

February 18, 2011 – Today, Secretary of Health and Human Services, Kathleen Sebelius, substantially rescinded a harmful 2008 “Conscience” regulation that threatened the health and well being of millions of patients.  NHeLP applauds the Secretary for focusing on patient health, and recognizing that the 2008 regulation was overly broad, confusing and burdensome on providers, and severely limited access to care for patients.  

The revised regulation recognizes that provider conscience protections were never intended to shield providers from liability for failing to obtain fully informed consent from their patients or disclosing treatment options that the provider refuses to offer because of religious or moral objections.  Existing law was certainly never intended as license to discriminate against groups of people.  The 2008 regulation put millions of women at risk, and undermined the ability of providers to establish clear protocols to ensure that patients get the health care they need, by intentionally confusing birth control with abortion, and extending “conscience rights” to an extremely broad group of health care workers - far beyond current law.  We commend Secretary Sebelius for recognizing patients’ rights to receive all information and make a truly educated decision about their health care options.

The 2008 regulation was particularly burdensome on low-income women whose provider choices are often limited.  Low-income people are more likely to be uninsured, locked into managed care plans that do not meet their needs, unable to pay out of pocket for services or to travel to another location. In rural areas there may simply be no other sources of health and life-preserving medical care.  The revised regulation reinforces statutory protections in Medicaid and other federal programs that cannot be ignored because of moral or religious objections.

At the same time, however, NHeLP is concerned about proposed legislation that would severely harm women by extending broader refusal rights to providers without protecting patient access to care.

As NHeLP documented in its 2010 report, Health Care Refusals: Undermining Quality Care for Women, contraceptive and abortion services are often included in professionally accepted standards of care, or protocols, for a wide range of common medical conditions including heart disease, diabetes, epilepsy, lupus, obesity and cancer. According to The Institute of Medicine, unintended pregnancy is highly correlated with pronounced health risks for both the mother and child.  Any rule that allows providers to offer an inferior standard of care cannot be tolerated.