Mostly Plants

RHRealityCheck makes some more specific critiques of the proposed Physician Conscience reg, which I respond to.  Many of the critiques are based on incorrect statements of existing law.

First, I provide a link to the text of 42 U.S.C. § 300a-7(c)(2) (2008), for your reference.  This is a Congressional law, passed by the House and Senate and signed by the President.  Only that process can change it–any HHS reg that purported to change it would be void.

• RHRC: HHS Secretary Leavitt “admitted that it could be read to include contraception in the definition of abortion.”

  BorealNemeton: This allegation is based on a WSJ article that RHRC links from their blog.  In that article, Leavitt admits that some anti-choice groups would try to say that contraception is abortion.  He doesn’t say that’s a fair reading of the reg, and it’s not.  The fact that Pharmacists for Life says they’ll do just that… is entirely irrelevant.  Pharmacists for Life is not a lawgiver, nor a dictionary.  I don’t care if they say abortion means the baking of cookies, it’s just not true!

• RHRC: The rule would allow legal challenges to state laws that require pharmacists to either dispense contraceptives or make referrals to pharmacists who will.

  BorealNemeton: This refers to a provision in the proposed rule that defines “assist in the performance of” (as used in the statute) to include counseling and referrals.  These challenges were open  under the statute, without a reg, but here’s how the reg helps.  Using the “Chevron Two-Step,” if a court finds that the statute is unclear about whether “assisting” includes giving referrals, they defer to the agency’s reasonable interpretation.  Still, a court could find that there’s no ambiguity at all, and the answer is no.  Or, without this reg being around, the court could find that the statute does mean that.

  Even if these state laws are struck down, the states have an easy solution: the state itself could easily provide a web directory of pharmacists who want the business.  Problem solved.  Still, this is the biggest problem with the proposed reg.  If you want to write a comment that will be helpful to HHS, I’d target this piece.

• RHRC: Although the rule mostly refers to abortions and sterilizations, once section refers to “health service program[s] or research activit[ies].”  “This is an exception you could drive a truck through.”

  BorealNemeton: It’s not an exception.  It doesn’t broaden existing law.  §300a-7(c)(2), cited above, is not limited to abortions and sterilizations, but refers to “lawful health service programs.”

• RHRC: Existing law only protects doctors and nurses with religious objections; this reg would protect all employees, whether their objections are religious or simply moral.

  Borealnemeton: Existing law protects all employees, whether their moral objectsions are based in religion or not.  And as a person who has a much better-developed sense of ethics than sense of religion, I see that as a good thing.

• RHRC: To the extent that it doesn’t change existing law, this reg is unnecessary.

  Borealnemeton: Well, there’s some truth to that.  Clarification and guidance are useful, but not necessary.  You know what else is unnecessary?  Mobilizing the feminist and progressive armies for something that is merely ‘unnecessary.’  This is why I’m spending so much time on this issue and reading and writing so much about it: because so far as I can tell, it’s just a massive cry-wolf by a bunch of groups whose calls-to-action I will be less willing to trust in the future.