Alliance Catholic Health Care
Commentary re: Regulation 45 CFR Part 88 (2008) [Rescinded]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]
16 September, 2008
Reproduced with permission
Dear Secretary Leavitt:
I am writing as president and chief executive officer of the Alliance of
Catholic Health Care in support of 45 CFR Part 88, the U.S. Department of
Health and Human Services' (HHS's) proposed "Provider Conscience
Regulation." The proposed regulation would help ensure that federal funds do
not support morally coercive practices in violation of federal
non-discrimination laws related to abortion.
The Alliance of Catholic Health Care is a California-based, nonprofit health
care association representing California's Catholic health care systems and
hospitals. Each of its members is a "health care entity" within the meaning
of Pub. L. 110-161, § Section 508(d) (the "Weldon Conscience Protection
Amendment").
The Alliance's members include fifty-three (53) California
Catholic and community-based affiliated hospitals, which represent nearly 16
percent of all California acute care in-patient hospitals. The Alliance's
California members include: Catholic Healthcare West, with approximately
9,600 active physicians, the largest not-for-profit hospital system in
California and the eighth largest in the nation; Daughters of Charity Health
Care System, with six hospitals and medical centers along the California
coast; Providence Health & Services, with four medical centers in Southern
California, as well as facilities in Alaska, Washington, Oregon and Montana;
and St. Joseph Health System, with ten hospitals throughout California, as
well as a regional health care system in Texas.
The Alliance's members provide health care services in accordance with the
religious and moral tenets of the Catholic religious faith. Central to these
beliefs is a firm commitment to the dignity of the human person from
conception to natural death, and a deep concern for the health care needs of
the poor and for those in spiritual need. Animated by these beliefs,
Catholic health care providers in California have been making a broad range
of quality health care services available to underserved patients and
families for more than 150 years.
While our members do not impose their
religious and moral beliefs upon those they serve, they do hold themselves
accountable, as health care providers, to Catholic ethical and moral
standards.* As a consequence, the noble American tradition
of religious tolerance and the nation's constitutional guarantee of
religious liberty have been cornerstones upon which Catholic health care
providers have relied as they serve their patients and communities. More
recently, the Alliance's members have also come to rely on federal and state
statutes that protect them from religious discrimination by political
jurisdictions and other entities on the ground that their moral convictions
preclude them from providing certain morally objectionable medical
procedures, such as abortion and elective sterilization.
These statutes and the Department's proposed regulation are especially
important to religiously affiliated health care providers in California,
where several influential policymakers and State officials have engaged in a
decade-long campaign to coerce them, under penalty of law, to provide
medical services in violation of their deepest moral convictions. The
following are but a few such examples:
- In 1999, California State Assembly Bill 525, as approved by the
Assembly Judiciary and Health Committees, would have: a) required
Catholic hospitals to provide or arrange for abortions or lose tens of
millions of dollars in annual state assistance. (The loss of this
support would have required our hospitals to increase their charges or
reduce charity care to make up the difference.); b) permitted the state
attorney general to review and impose restrictions on mergers between
nonprofit health care institutions if services such as in-patient
abortions were affected. Further, the bill permitted reviews even if
such services were left unchanged, as would be the case in the merger of
two Catholic hospitals. AB 525 permitted the attorney general to hold up
mergers, impose requirements that could violate Catholic ethical
principles and charge our hospitals for the state's cost of doing so;
and c) required all health plans that contract with Catholic hospitals
to single them out in their marketing materials for identification as
providers that do not provide abortions or certain other reproductive
services. (This provision did nothing to achieve its stated purpose of
informing patients where such services are available; it simply
attempted to "blacklist" Catholic institutions and their religious
beliefs.) AB 525 was aimed directly at Catholic health care providers.
The bill's principal author issued a press release that stated, "AB 525
was created in response to a growing threat to reproductive health care
services as a result of mergers between religiously affiliated health
care systems" and other systems. The press release identified the
"Ethical and Religious Directives for Catholic Health Care" and its
prohibitions on abortion and certain other services as the targets of
the bill. AB 525 failed on the Assembly floor by a mere ten votes.
- Earlier in this decade, several commissioners on the California
Medical Assistance Commission (CMAC) made repeated, but unsuccessful,
attempts to force Catholic hospitals to provide abortion and other
reproductive services as a condition of receiving a Medi-Cal (Medicaid)
contract.
- Following enactment of the federal Weldon Conscience Amendment in
2005, California's attorney general filed suit in federal district court
to have the new statute declared an unconstitutional infringement on the
state's ability to enforce its own abortion laws. He was the only state
attorney general to do so. Apparently, he viewed the Weldon Amendment as
an effective impediment to the future enactment of legislation such as
AB 525. The attorney general's suit alleged that two Catholic hospitals
in California had denied a patient treatment for an emergency abortion.
This claim was subsequently investigated by the California Department of
Health Services, which found no basis for the allegation. The court
ultimately found against the attorney general on procedural grounds.
California v. The United States, No. C 05-00328 JSW, 2008 WL 744840
(N.D. Cal. March 18, 2008).
Each of these efforts to employ the power of the state to compel Catholic
hospitals to violate their religious and moral beliefs was promoted as an
attempt to improve access to abortion and other reproductive services. The
truth is that they were not about access, but intolerance. Despite the
claims that Catholic health care providers threaten the availability of
abortion and sterilization in California, the sponsors of these measures
have never produced objective evidence that such a threat exists; and, in
fact, the procedures remain widely available. Further, the sponsors'
approach stands in stark contrast to the meaning and spirit of the 1971
California conscience clause statute that was adopted in the wake of
enactment of State's therapeutic abortion law in 1968.
These assaults on freedom of conscience not only run counter to our
nation's commitment to religious tolerance and liberty, they conclusively
demonstrate the urgent need for the proposed regulation. The proposed
regulation is intended to ensure compliance with the Church Amendments, the
Public Health Service Act, and the Weldon Amendment, and to ensure that the
Department of Health and Human Services (HHS) does not support coercive or
discriminatory practices by supplying funds to a state or other entity that
enacts policies in violation of federal non-discrimination laws related to
abortion. Several of these federal conscience protection statutes have been
in existence for more than thirty years but, by themselves, they have not
deterred influential California public officials from attempting to
contravene them. Enforcing these important and necessary statutes through
the proposed regulatory protections will help ensure that health care
professionals and institutions in California, and elsewhere, will be able to
serve their patients and clients free from religious and moral
discrimination.
Currently, while many recipients of federal funds must certify compliance
with federal nondiscrimination laws, federal conscience protection laws are
not mentioned in the forms that are used. These draft regulations would
specifically include reference to the nondiscrimination provisions of the
Church Amendments, the PHS Act, and the Weldon Amendment. The proposed
regulations would require recipients and sub-recipients of certain federal
funds to certify compliance with these laws as a material prerequisite to
receiving federal funding. The certification must be done in writing and is
intended to ensure the recipients know of, and will comply with, the
nondiscrimination laws. This certification will serve to remind and
emphasize that discrimination based upon religious and moral beliefs is
prohibited under federal law and that such conscience-based conduct is
entitled to the same deference as are our nation's other important civil
rights protections. As demonstrated above, the Alliance believes that this
certification process is necessary to protect our member institutions from
the very real threat of discriminatory treatment by public and other
entities. Moreover, for these same reasons, we believe that written
certification of compliance with nondiscrimination provisions should contain
language specifying that the certification is a material prerequisite to the
payment of Department funds.
The proposed regulation would limit the scope
of protected persons to those who are under the control or authority of an
entity that implements a health service program or research activity funded
in whole or part under a program administered by the Department, "whether or
not they are paid by the Department-funded entity." And the proposed rule
would allow broad discretion for individuals' consciences by avoiding
judging whether a particular action is genuinely offensive to an individual.
This principle of conscientious objection should include every stage of
pregnancy from the initiation of conception.**
The proposed rule would apply the term "assist in the performance" to
members of a recipients' workforce who have a "reasonable connection" to the
objectionable procedure including its performance, referrals, training and
other arrangements. Clearly, these definitions broadly protect religious
liberty and freedom of conscience, and would deter recipients from engaging
in discrimination based upon the exercise of these fundamental freedoms and
rights.
We also believe that it is entirely appropriate for the Department's Office
for Civil Rights to examine complaints of discrimination under the proposed
rule. Discrimination based upon the exercise of religious liberty and
freedom of conscience is a denial of basic civil rights and warrants the
same level of scrutiny, investigation, and enforcement as, for example,
discrimination based upon race, sex, or physical disability warrants under
the civil rights laws. To this end, we are concerned that, because HHS would
not conduct reviews with regard to specific issues of compliance, the lack
of such review might leave potential noncompliance undetected. Thus, we
believe that more extensive compliance review would be appropriate in order
to ensure the laws are followed. Waiting for complaints of noncompliance to
be filed may not achieve the desired result of compliance, as many
individuals may not be fully aware of their conscience rights or the extent
to which such rights are protected under federal law. We do note, with
appreciation, that if HHS is informed of any specific compliance issues in a
state, local government or other entity, HHS would work with such entity to
come into compliance and, if compliance is not achieved, HHS may employ all
legal avenues to remedy non-compliance, including termination of funding and
return of funds paid out.
Finally, the Department has requested comments
on what constitutes the most effective methods of making recipients of HHS
funds, their employees, and participants aware of the protections against
discrimination found in the Church Amendments, PHS Act, and the Weldon
Amendment. To be sure, requiring the physical posting of notices of
nondiscrimination protections in conspicuous places within the buildings of
recipients of funds, and on applications to educational programs that are
recipients of funds, is a good starting point. Likewise, requiring the
inclusion of nondiscrimination protections in notices of applications for
training, residency, educational programs and private health insurance plans
that receive federal funds to provide access to health care coverage (e.g.,
SCHIP, Medicaid, and Medicare Advantage) is another prudent measure to
promote nondiscrimination, as would be requiring notice of nondiscrimination
protections on recipients' websites and in their employee handbooks.
Knowledge is power. By instilling an awareness of religious liberty and
freedom of conscience, and the right to be free from discrimination based
upon the exercise of these rights, the proposed regulation will empower
employees and other protected persons. We fully support the proposed rule.
The Alliance and its members commend you for proposing this necessary
rule and hope the foregoing comments are helpful. We are prepared to provide
further comments or information that might assist the Department in
promulgating the final regulation
Respectfully submitted
William J. Cox
President and Chief Executive Officer
Alliance of Catholic Health Care
*See "Ethical and Religious Directives for Catholic
Health Care Services" (United States Catholic Conference of Bishops 2001).
**The American Medical Association defines conception as
the "fertilization of an egg by a sperm that initiates conception." AMA
COMPLETE MEDICAL ENCYLOPEDIA 392 (2003)