Regulation 45 CFR Part 88 (2008) [Rescinded]
U.S. Department of Health and Human Services
Ensuring That Department of Health and Human Services Funds Do Not
Support Coercive or Discriminatory Policies or Practices in Violation of
Federal Law
- Note: This section of the site refers to a
regulation issued
in December, 2008 by the Bush Administration. It was eviscerated by the
Obama Administration and re-issued in February, 2011. [See
current regulation]
On 15 July, 2008 the New York Times published a
story
based on a confidential document it had obtained from the U.S. Department of
Health and Human Services. The document is purported to be a briefing note
and draft regulation being circulated in the Department. The stated purpose
of the proposed regulation is "to define key terms, and to ensure that
recipients of Department funds know about their legal obligations" under
federal protection of conscience laws. In particular:
- the
Conscience Clauses/Church Amendments prohibit entities that receive
some grants, contracts, loans, or loan guarantees "from denying
admission to, or otherwise discriminating against, "any applicant
(including for internships and residencies) for training or study
because of the applicant's reluctance, or willingness, to counsel,
suggest, recommend, assist, or in any way participate in the performance
of abortions or sterilizations contrary to or consistent with the
applicant's religious beliefs or moral convictions;"
- the
Public Health Service Act "prohibits the Federal government and any
State or local government receiving federal financial assistance from
discriminating against any health care entity on the basis that the
entity refuses to: (1) receive training in abortion; (2) provide
abortion training; (3) perform abortions; (4) provide referral for such
abortions; or (5) provide referrals for abortion training."
- the Weldon Amendment denies
federal funds to federal agencies or programmes or State or local
government that discriminate against institutional or individual health
care entities because they do not "provide, pay for, provide coverage
of, or refer for abortions."
On 21 August, 2008, the Department issued the final draft of the proposed
regulation,
Ensuring
that Department of Health and Human Services Funds Do Not Support Coercive
or Discriminatory Policies or Practices In Violation of Federal Law,
with a deadline of 25 September, 2008 for public comments. The stated goals
of the regulation were:
(1) educate the public and health care providers on
the obligations imposed, and protections afforded, by federal law;
(2) work with State and local governments and other
recipients of funds from the Department to ensure compliance with the
nondiscrimination requirements embodied in the Church Amendments, PHS Act §
245, and the Weldon Amendment;
(3) when such compliance efforts prove unsuccessful,
enforce these nondiscrimination laws through the various Department
mechanisms, to ensure that Department funds do not support morally coercive
or discriminatory practices or policies in violation of federal law; and
(4) otherwise take an active role in promoting open
communication within the healthcare industry, and between providers and
patients, fostering a more inclusive, tolerant environment in the health
care industry than may currently exist."
In December, 2008 the Department responded to the comments received and
issued the
final rule in the Federal Register. The rule took effect on the last day
of the outgoing Bush administration in January, 2009.
The incoming Obama administration was opposed to the regulation. In
March, 2009 it announced its intention to revoke the rule and solicited
comments on its plan for a 30 day period ending 9 April.
The materials posted in relation to this regulation are listed below.
They include
- comments about the leaked draft during the initial controversy in
July;
- submissions to the Department of Health and Human Services in
response to the proposed and final rule;
- submissions to the Department of Health and Human Services about
revocation of the rule;
- informal commentary, including news release and opinion and
editorial columns.
2008-07-15
Christian Medical Association News Release
2008-07-15
Concerned Women for America News Release
2008-07-18
U.S. Conference of Catholic Bishops News Release
2008-09-02
Conscience and coercion (CMA Letter to the Editor)
2008-09-02
Abortion Article Was Incorrect (CMA Letter to the Editor)
2008-09-04
Moral Safeguards for Patients, Too (CMA Letter to the Editor)
2008-09-15
Re: "Leavitt should drop proposed health care rule." (CMA Letter to the
Editor)
2008-09-16
Rules let care workers practice medical ethics (CMA Letter to the
Editor)
2008-09-25
Proposed rule would protect doctors from discrimination
2008-11-13
Don't doctors deserve a choice on abortion?
2008-12-17
A matter of conscience
2008-07-15
Christian Medical Association
- 2008-09-18
Christian Medical Association re: survey of public knowledge
- 2008-09-19
Christian Medical Association re: methods of communication
2008-07-15
Letter from Justin Cardinal Rigali to Members of U.S. Congress
2008-08-26 Comment on HHS Regulation 45 CFR
Part 88
- Family Research Council
- Concerned Women for America
- Association of American Physicians and
Surgeons, Inc.
- American Association of Pro-Life Obstetricians and
Gynecologists
- Christian Pharmacist Fellowship International
- Safe Drugs for
Women
2008-09-12
United States Conference of Catholic Bishops
2008-09-16
Alliance Catholic Health Care
2008-09-24
Protection of Conscience Project Submission
2008-09-24
Catholic Health Association of the United States
2008-12-19
Commentary by U.S. Department of Health and Human Services
2009-03-24
Letter from National Catholic Partnership on Disability
2009-03-24
Should the Obama Conscience Rules Seek to Protect Persons or Provide
Benefits?
2009-04-09
Christian Medical Association re: Data and analysis of two national surveys
on conscience rights
2009-04-29
Michigan Senate Resolution No. 43.