When, in the waning days of the Bush Administration, the Department of Health and Human Services (HHS) issued a rule that allowed nearly anyone in the medical industry to deny women access to reproductive health services -- let alone referrals to alternate providers -- if the professional had a religious objection to the service sought by the patient, women’s health advocates gasped at the outgoing Administration’s audacity.
To add insult to injury, the “provider conscience law,” which allows providers not only to refuse to engage in activities that violate their religious beliefs but to actively enforce those beliefs on women by denying them further access to providers willing to provide medical services without those beliefs, went into effect the very day that President Barack Obama was inaugurated: January 19, 2009.
The Obama Administration promised speedy action on its repeal, even as it took immediate efforts to sign the Lily Ledbetter Fair Pay Act into law and rescind the so-called global gag rule, which prohibited NGOS that provided counseling or referrals for safe abortion services or advocated for changes in abortion laws from receiving U.S. international family planning funds.
Unlike the global gag rule, which Obama could rescind by Executive Order, repeal of the provider conscience rule would require a more technical solution. But despite earlier promises, the conscience rule remained in place, even as the health care debate was waged in Washington as underscored by the first lawsuit filed on the basis of the regulation.
On August 26, 2008, the Bush Administration’s Department of Health and Human Services issued a Notice of Proposed Rulemaking, which began the process of creating the provider conscience law. The law requires that the public get 30 days to comment on a proposed rule, and that the department consider the comments before issuing the final rule. That they did: comments were open until October 2008, the department considered them, and on December 19, it issued the final provider conscience rule in the Federal Register, which did not take into account any of the serious comments or concerns raised by reproductive rights organizations or advocates. From start to implementation, the rule-making process took a sum total of five months
To rescind a properly promulgated regulation requires a properly promulgated regulation, as the Administration discovered when it took office. So, on March 10, 2009, the Obama Administration’s Department of Health and Human Services issued its notice of proposed rule-making (h) to rescind the provider conscience law and to take comments from the general public for 30 days.
By then, many of the 11th-hour regulations undertaken by the Bush Administration -- from rules on drilling to those on endangered species -- had already been overturned by President Obama. The announcement of the provider conscience rule rescission met with some backlash from the conservative groups that initially called for the law but, at the outside, the Administration was expected to at least narrow the rule to abortion services rather than allow it to affect everything from birth control to end-of-life care.
But 30 days passed, the comment period ended… and still women wait. The Administration has yet to issue a final rule rescinding the provider conscience law more than a year after it proposed doing so. Phone calls made and emails sent to the press office and the Office on Women’s Health at the Department of Health and Human Services by the author to inquire about the status of the proposed rule went unreturned.
Most people with whom we spoke on Capitol Hill and in the reproductive rights community either didn’t know whether the repeal had been finalized, or were surprised that it had yet to be finalized. Congresswoman Lois Capps, who co-chairs the Women’s Health Task Force of the Congressional Women’s caucus and sponsored the Capps Amendment to the health care reform bill that was eventually cast aside in favor of the severely restrictive Stupak Amendment, had this to say.
“First off, I want to thank the entire pro-choice community for their support as we fought to enact comprehensive health care reform, despite some obvious setbacks. The bottom line is that reproductive rights are better off with President Obama in office: within the first month of his inauguration, he rescinded the global gag rule. These things take time, and as we move forward, I will help him in any way I can in his efforts to repeal the conscience clause.”
But with Bush’s provider-conscience law still on the books (more than a year after the new Administration proposed rescinding them) and President Obama’s executive order on abortion restrictions in health reform in place, it's not a given that women in America are better off when it comes to access to reproductive health services than they were in October 2008, when neither restriction was on the books. That analysis also doesn’t take into account the proliferation of state laws restricting abortion, denying women access to abortion coverage as part of their insurance coverage and the continuing movement to make abortions harder to get while this Administration tries to find a non-existing bipartisan compromise that satisfies no one.