Federal Defense Attorney John Teakell

In the final days of the Bush administration, several “midnight regulations” were pushed through federal agencies, and many were slated to take effect this week. The Department of Health and Human Services’ Provider Conscience Rule, perhaps the most controversial of these regulations, has prompted several attempts to block its implementation from seven states and two organizations in lawsuits filed against Bush’s administration, according to CNN.

Connecticut’s Attorney General, Richard Blumenthal, filed a lawsuit on behalf of his state in addition to California, Illinois, Massachusetts, New Jersey, Oregon and Rhode Island. This suit claims that the rule puts women’s health at risk and violates constitutional rights in the pursuit of necessary reproductive health care, as well as conflicts with state contraception laws.

These states have similar laws that guarantee rape victims will be provided emergency contraception, or “Plan B”. The new rule would override these requirements, as federal measures always preempt a state’s when conflicting statutes exist between the two. Thus, Blumenthal’s lawsuit is seeking an injunction to prevent the rule from taking effect, as well as requests the court to invalidate it.

Blumenthal also presents the argument that Connecticut’s version of the emergency contraception law was initially objected to by Catholic leaders in the surrounding community. However, these same leaders now endorse the measure; the state has also not experienced public complaints in relation to the law.

Arguments for the rule include that it is meant to protect health care providers from discrimination when their personal beliefs conflict with requirements of their place of employment, such as refusing to perform an abortion due to religious beliefs; unfortunately, the rule’s language does not define “abortion”, leaving the term open to interpretation to include contraception.

Separate suits were also filed by the Planned Parenthood Federation of America and the National Family Planning & Reproductive Health Association, which is being represented by the American Civil Liberties Union. Arguments filed by the organizations outlined distinctions between religious rights and the purpose of the Provider Conscience Rule.

Guidelines from the Department of Health and Human Services (HHS) confirm that the rule allows withholding federal funds for state and local governments and health care facilities that do not adhere to federal laws banning discrimination of health workers. These anti-discrimination laws allow these professionals to refuse services or referrals for abortion and sterilization procedures. However, HHS encourages caretakers to exercise full disclosure to patients advising them of services that they will and won’t provide. Another area of conflict in the rule is that all employees of these institutions are protected, including the janitor and receptionist.

The rule was originally intended to increase compliance with existing federal anti-discrimination laws meant to protect a provider’s right to refuse to perform services which they personally object to. However, these recent lawsuits outline the vague language in the rule that leaves open the possibility of time-tested state and local laws being derailed and ignored.

Many Congress members have also pursued attempts to block the rule by introducing a bill last week, providing evidence of widespread objection to implementing the measure.