Proposed HHS Regulation Could Still Be Used to Block Access to Contraception, Other Health Services

Our guest blogger is Jessica Arons, the Director of the Women’s Health and Rights Program at the Center for American Progress Action Fund.

HHS has released its proposed regulation to “help protect health care providers from [religious] discrimination.” The good news is it no longer attempts to re-define abortion to include birth control. But don’t breathe a sigh of relief just yet.The regulation no longer defines pregnancy or abortion at all. But in a telephone news conference, Sec. Mike Leavitt left open the possibility that individuals might be able to define those terms for themselves in determining what they find morally objectionable, which means they still may be able to deny women access to oral contraceptives, emergency contraception, and the IUD, among other commonly used methods of birth control.

And that’s just the beginning.

While most of the regulation limits the scope of allowable moral objections to training, performing, counseling, or referring for abortion and sterilization, some sections are not so restricted.

Entities to whom this subsection 88.4(d) applies shall not require any individual to perform or assist in the performance of any part of a health service program or research activity funded by the Department if such service or activity would be contrary to his religious beliefs or moral convictions.

That seems to be an exception you could drive a truck through.

Also note the objections can be based not only on religious beliefs but on any personal moral convictions. This is much broader than the traditional conscience clauses, including those that allowed for conscientious objectors during the Vietnam War.

Finally, the proposed regulation would extend protection from doctors and nurses to just about anyone who might come into contact with a patient, and even some who might not.

[A]n employee whose task it is to clean the instruments used in a particular procedure would be considered to assist in the performance of the particular procedure.

By that logic, an ambulance driver, a receptionist, and even the person who processes health insurance forms might be able to refuse to perform their jobs if related to a health care service they find morally objectionable. Volunteers are explicitly protected too.

The public may submit comments on the regulation during the next 30 days to or via email to

UPDATE: NFPRHA has more.