Mostly Plants

If you haven’t been living under a rock for the past month, you’ve heard the rumors–and seen calls to action all over the internet–about a Notice of Proposed Rulemaking that the Department of Health and Human Services has released on “Physician Conscience.” The calls to action range from the specific (and false) allegation that the NPRM “redefines abortion to include contraception,” to the misleading “allows health care providers to define abortion” (it fails to define the term, but does not delegate the definition to anybody else) and “leaves the door open [for physicians not to provide birth control.]” The gist of it all, though, is that this is allegedly a proposal that would allow physicians who don’t like birth control to not prescribe it.

Below is the reply that I posted to a friend’s call to action on her livejournal–giving some background, then explaining why I think this is all overblown, and the HHS proposal is no big deal. If you disagree, please comment and explain why.

Here’s what the proposal would do, if enacted:

A set of laws dating back to 1970 provide that no recipient of federal funds may discriminate against health care providers for their refusal to provide or participate in providing services that they have a personal moral objection to. That would include Jehova’s Witnesses doing blood transfusions, and potentially catholics writing birth control prescriptions. That much is not new, and not changing.

Recently, the American College of Obstetrics and Gynecology proposed a rule that no OB-GYN could be certified as “competent” unless they demonstrated a competence at performing abortions. This made HHS mad. And I think, rightly so. If all you want to do is deliver babies, and you think abortions are wrong, you shouldn’t be forced to choose between doing abortions and not being able to deliver babies.

So the new regulation:

* Defines “health care provider” to include any employee of an organization that provides health care services.

* Defines “assist in performing” (objectionable services) to include any form of assistance–and gives the example of an employee whose job is to sterlize surgical instruments but objects to sterilizing instruments used in abortions.

* Requires recipients of federal funds (hospitals, clinics, etc) to say that they are complying with the law

* DOES NOT make any reference to birth control, define abortion, or redefine birth control as abortion. Rumors that the regulation did so were based on an early draft that got leaked, but was never made official (even as a proposal, let alone a final rule)

I have a copy of the proposed language that I will happily forward to anybody who wants it, or you can download it from Regulations.gov

Don’t let the 47 pages deter you from reading this proposed regulation. The first 21 are background, the next nine are “impact analysis” (you don’t need to read this), and the final twelve are the actual proposed regulation–which pretty much does what the summary in the first twenty pages says it does.

And now for my own opinion: this is just not as big a deal as it’s been made out to be. And I take issue with the description of it as “far-reaching:” it’s not changing a whole lot. As far as abortion is concerned, the doctor’s right not to perform them if s/he doesn’t want to is almost forty years old, and this regulation does not change that. It doesn’t really change anything with respect to birth control either. The ACLU says that it “leaves open” the possibility that doctors could refuse to write birth control scripts, and that’s true–because the laws that create that possibility were passed by Congress, and HHS does not have the power to undo them.

Don’t get me wrong–I think the idea of a physician prescribing “hope, rhythm, and prayer” to a patient who wants not to have babies is morally repulsive, and I think any woman who gets that kind of advice from her doctor should slap him in the face and never go back. (Kicking in the balls, if applicable, may seem attractive, but is probably more likely to lead to legal trouble for the patient). That said, I’m not sure how the right to control one’s own body includes a right to assistance from the body of another, when that other finds the purpose or means of control morally repulsive. I suppose that’s a lawyerly way of saying that my right to swing my arm ends where your nose begins, or where I need your help to swing it and you don’t want to.

That said, all the hoopla and public-commenting do have value, insofar as they say to HHS: “we’re watching you. Please don’t try any funny business.”