United States
Conference of Catholic Bishops
Commentary re: Regulation 45 CFR Part 88 (2008) [Rescinded]
U.S. Department of Health and Human Services
- Note: This commentary 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]
12 September, 2008
Reproduced with permission
Subj: Provider Conscience Regulation
On behalf of the United States Conference of Catholic Bishops
("Conference" or "USCCB"), we offer the following comments on the
proposed rule to protect the conscience rights of health care
professionals and institutions. 73 Fed. Reg. 50274 (Aug. 26, 2008).
Interest of the United States Conference of Catholic Bishops
The Conference is a nonprofit corporation organized under the laws of the
District of Columbia. All active Catholic bishops in the United States are
members of the Conference. The Catholic Church, the largest religious
denomination in the United States, has over 67 million adherents in over
18,000 parishes throughout the country. The Conference advocates and
promotes the pastoral teaching of the bishops in such diverse areas as
education, family, health care, social welfare, immigration, civil rights,
the economy, and respect for human life at its most vulnerable stages. The
Conference participates in rulemaking proceedings of importance to the
Catholic Church and its people and institutions in the United States.
Religious freedom and the right of conscience are among the values the
Catholic Church seeks to promote and protect. As the Pontifical Council for
Justice and Peace has said: "Unjust laws pose dramatic problems of
conscience for morally upright people: when they are called to cooperate
in morally evil acts they must refuse. Besides being a moral duty, such
a refusal is also a basic human right which, precisely as such, civil law
itself is obliged to recognize and protect. 'Those who have recourse to
conscientious objection must be protected not only from legal penalties but
also from any negative effects on the legal, disciplinary, financial and
professional plane.'"1
Protection of this basic right of conscience takes on even greater
urgency when members of the healing professions are subjected to pressure,
or risk being pressured, to participate in the taking of innocent human
life, conduct which is directly inimical to the role and function of
medicine. Individuals and institutions committed to healing should not be
required to take the very human life they are dedicated to protecting.
In light of these important considerations, we offer the following
comments in strong support of the proposed rule.
Comments
1. In the Present Environment, the Proposed Regulations are Critical.
We strongly commend the Secretary for publishing these proposed regulations.
For over three decades, through enactments such as the Church Amendment (42
U.S.C. //300a-7), Congress has sought to ensure that health care
institutions and professionals will not have to choose between abandoning
medicine and violating their conscience, particularly with respect to
abortion and sterilization. The proposed regulations would implement these
longstanding federal statutory protections, and thus help guarantee that
health care institutions and professionals are not pushed into this Hobson's
choice.
Negative public reaction to an earlier leaked version of the
regulations by pro-abortion groups and some editorial writers attests to
their need. The adverse reaction demonstrates, at best, a deplorable lack of
understanding about the federal legislative rights of conscience on which
the proposed regulations are based, at worst outright hostility to those
statutory rights. Judging from much of the public commentary, once would
think that rights of conscience in health care are a recent invention, and
that the statutes implemented through this rule simply did not exist. The
regulations are therefore all the more critical to ensure that Congress's
intent will be carried out.
That there is a need for regulatory enforcement is also demonstrated by
growing hostility on the part of some professional organizations and
advocacy groups to rights of conscience in health care. The following
examples are illustrative:
-
In November, 2007, the American College of Obstetricians and
Gynecologists issued an opinion (Committee
Opinion No. 385) asserting that it is unethical for
obstetricians-gynecologists to decline to provide or refer for abortion
or sterilization.
-
The American Civil Liberties Union has developed a report and
advocacy kit aimed at requiring all hospitals, including those with a
conscientious objection, to provide abortions. The report argues that
the "law should not permit an institution's religious strictures to
interfere with the public's access to reproductive health care."2
-
Naral Pro-Choice America claims that conscience clauses, which it and
other advocacy groups pejoratively label "refusal clauses," are
"dangerous for women's health."3
-
Physicians for Reproductive Choice and Health claims that "the right
of the patient to timely and comprehensive reproductive healthcare must
always prevail" over a health care provider's right of conscience
, and that "[s]everal other leading national and public health
associations hold similar beliefs."4
2. The Regulations Should Define Abortion to Include Any Procedure that
the Objector Reasonably Believes May Take the Life of a Human Being in
Utero At Any Time Between Conception and Birth.
We believe that the regulations would be strengthened by defining abortion
to mean any drug, procedure, or other act that the objector reasonably
believes may take the life of a human being
in utero at any time
between conception (fertilization) and natural birth.
As stated in the
preamble, the regulations are intended to give broad protection to the
conscience of institutional and individual health care providers. The
protections they provide therefore should not become ineffective when the
abortifacient procedure at issue operates before implantation. Abortion, as
defined by the American Medical Association, is the "voluntary termination
of a pregnancy."5 A pregnancy, in turn, is the
"process of carrying a developing embryo or fetus in the uterus from
conception on."6 "Conception" is defined as
the "fertilization of an egg by a sperm that initiates pregnancy."7
Based on these definitions, many health care providers reasonably understand
abortion to mean the destruction on an embryo in utero, whether before or
after implantation.8
The Catholic Church, which sponsors the largest system of nonprofit
health care in the nation, sees abortion in precisely this light. Catholic
moral teaching rejects the deliberate destruction of a member of the human
species at any stage after fertilization:
Abortion (that is, the directly intended termination of pregnancy
before viability or directly intended destruction of a viable fetus) is
never permitted. Every procedure whose sole immediate effect is the
termination of pregnancy before viability is an abortion, which in
its moral context, includes the interval between conception and
implantation of the embryo. Catholic health care institutions are
not to provide abortion services, even based upon the princple of
material cooperation.9
Catholic teaching does not state which drugs or devices, if any, act by
directly interfering with implantation. That is a scientific question on
which there may be conflicting and changing evidence. But it is important to
defend the principle that conscientious objection to abortion should be
protected at every stage, especially as new drugs or devices may emerge in
the future that clearly would act chiefly by disrupting implantation and
therefore pose a very direct new challenge to consciences.
For these reasons, we believe the regulations should be modified to
define abortion as any procedure, drug, or other act which the objector
reasonably believes may result in the embryo's destruction in utero.
3. We Recommend Some Technical Corrections
We suggest the following technical corrections. Suggested wording changes
are indicated in italics.
Section 88.4(a)2 should be amended to provide
that entities to which that subsection applies shall not "subject any
institutional or individual health care entity to discrimination for
attending or having attended a post-graduate physician training program, or
any other program of training in the health professions, that does not or
did not perform induced abortions, or require attendees to perform
induced abortions or require, provide or refer for training in the
performance of induced abortions, or make arrangements for the provision of
such training . . ." Adding the italicized language would ensure that this
particular provision more closely tracks the statute (42 U.S.C. 238n(a)(3)
on which it is based. The italicized language is important because there is
a distinction between a health care entity that does not permit the
performance of induced abortion in its program and facilities, and a health
care entity that does not require attendees to perform abortions. Section
238n(a)(3) protects both entities by ensuring that those who attend them
will not be subjected to discrimination.
Section 88.4(d)(1) should be amended to provide that entities to which
that subsection applies shall not "require any individual to perform or
assist in the performance of any part of a health service program or
research activity funded in whole or in part by the Department if
his performance or assistance in the performance of such service or
activity would be contrary to his religious beliefs or moral convictions."
Adding the italicized language would ensure that this particular provision
better tracks the statue (42 U.S.C. 300a-7(d)) on which it is based, and is
consistent with the way in which subsequent subsections (see sections
88.4(d)(2) and (e)) are structured. The phrase "in whole or in part" is
particularly important because any amount of funding triggers the
protection, and this will be made clear by incorporating the italicized
language.
The proposed section 88.3(a) provides that "[t]he Department of Health
and Human Services is required to comply with section 88.4(a), (b)(1), and
(d)(1). . ." Section 88.3(a) should be amended by adding section 88.4(e) to
the list of provisions with which HHS is required to comply. Section 88.4(e)
implements 42 U.S.C. //300a-7(b), which applies to "any court or any public
official or other public authority." Consistent with section 300a-7(b), the
proposed Section 88.3(e) states that "any . . . public entity must comply
with section 88.4(e)." Because they are public authorities or entities, HHS
and all other federal agencies and officials are bound by section 300a-7(b),
and therefore should be bound by section 88.4(e).
The proposed regulation, by an apparent omission, currently does not
specify what sort of entity Section 88.4(c) applies to. The final regulation
should correct the omission by stating what sort of entity section 88.4(c)
applies to.
Conclusion
We commend the Secretary for promulgating the proposed regulations. It is
critically important, as the Secretary has recognized, that statutory rights
of conscience be enforced. To ensure broad protection for conscience, we
request that "abortion" be defined to include any drug, procedure, or other
act that the objector reasonably believes may result in the destruction of
the embryo
in utero at any time between conception and natural birth.
Finally, we request the adoption of the technical changes discussed above.
Thank you for the opportunity to comment.
Sincerely,
Anthony r. Picarello,
General Counsel
Michael F. Moses
Associate General Counsel.
[pdf Version]
Notes
1. Compendium of the Social Doctrine of the Church
(2005), no. 399, citing Pope John Paul II, Evangelium vitae (1995),
no. 73. Cf. Catechism of the Catholic Church 2d ed., 2000), no. 2242
2. American Civil Liberties Union Reproductive Freedom
Project,
"Religious Refusals and Reproductive Rights," p. 9 (2002) (visited Sept.
9, 2008). See Maureen Kramlich, "The Abortion Debate Thirty Years
Later: From Choice to Coercion," 31 Fordham Urban L.J. 783, 787 (March,
2004) (discussing the ACLU report and related threats to conscience rights
with regard to abortion).
3. Naral Pro-Choice America, "Refusal Clauses:
Dangerous for Women's Health," stating (p. 6) that failure to provide
abortions, sterilizations, and other procedures, "even for religious
reasons," is "wrong and may jeopardize patient health."
4. Physicians for Reproductive Choice:
"Church and Medicine:
Medical and Public Health Associations on Refusal Clauses" (emphasis
added) (visited Sept. 10, 2008), with links to similar statements by other
organizations.
5. AMA COMPLETE MEDICAL ENCYCLOPEDIA 99 (2003)
6. Id. at 1011 (emphasis added).
7. Id at 392.
8. For additional arguments and authority on these
points, see the comments on the proposed regulations submitted by the Thomas
More Society (comment number 806f9634). See also USCCB Secretariat for
Pro-Life Activities,
"What
is an Embryo?" (citing contemporary textbooks on embryology and
additional authority.)
9. ETHICAL AND RELIGIOUS DIRECTIVES FOR CATHOLIC HEALTH
CARE SERVICES (USCCB 2001), no. 45. These directives provide a national
policy for Catholic health care facilities.