As Secretary of the Department of Health and Human Services, Mike Leavitt has shown himself to be a devoted bureaucrat, and a man of moral conviction. Unfortunately he insists on combining the two, tailoring the nation’s business to his faith. That was about the only thing made clear yesterday by the release of his new, much anticipated, HHS regulation.

Leavitt is attempting to pass off his new regulation as protecting health care providers who, for reasons of conscience, don’t want to take part in abortion services. He told reporters, “This regulation . . . is consistent with my intent to focus squarely on the issue of conscience rights. This specifically goes to the issue of abortion and conscience." But for those schooled in the fine print, the regulation might be described as a love letter to extremists. After all, there are already no less than three laws on the books spanning 30 years that protect individuals who do not wish to take part in abortion care. (And for the record, no one wants those opposed to abortion providing abortion care, certainly not patients.) Leavitt does not claim that these laws are inadequate; he does not point to any violations of them. He seems to want us to believe that he is merely underscoring longstanding laws.
He argued,

“It is currently a violation of three separate federal laws to compel medical practitioners to perform a procedure that violates their conscience.”

In fact, the new HHS regulation far expands the jurisdiction of those decades-old laws. It reads:

“the objective that the proposed regulation would, when finalized, provide for the implementation and enforcement of federal nondiscrimination statutes protecting the conscience rights of health care entities. It also states that the statutory provisions and regulations contained in this Part are to be interpreted and implemented broadly to effectuate these protections.”

The regulation also states it will protect:

"any individual health care provider or institution from being compelled to participate in, or from being punished for refusal to participate in, a service that, for example, violates their conscience."

The regulation later defines health care program or service as:

"an activity related in any way to providing medicine, health care, or any other service related to health or wellness."(emphasis mine)

Once laws were designed to allow those who objected to abortion to abstain from participating. For Leavitt that is clearly too limiting. Leavitt’s clear intent is to allow these laws to be read more broadly, interpreted to apply to a larger set of health care services. As Leavitt puts it, to “protect federally funded medical practitioners from being coerced into providing treatments they find morally objectionable.”

The morally imaginative can concoct objections to just about any procedure, practice or medication. And the new regulation makes no suggestion about which, if any, personal objection might go too far.

Take those who believe (without scientific evidence) that contraception can cause abortion. The language of Leavitt’s new regulation appears to be a big gain. Now, it would seem health care workers need not be involved with the provision of birth control pills as long as they can say “they find morally objectionable” the use of contraception. When asked specifically by reporters whether the proposal would provide cover for those who claim contraception is abortion, Leavitt offered, “This regulation does not seek to resolve any ambiguity in that area”

Leavitt is suspiciously close-mouthed on other important questions raised (after an earlier version was leaked to the press). For instance, would laws that now require emergency room staff to offer rape victims pregnancy prevention be unenforceable in the face of “moral objections.” If read broadly, not only could rape victims be refused this care by an objecting ER staffer, they could also be denied information about where they can receive it.

The regulation also has raised fears that a pro-choice organization could not screen out pro-life job applicants. (Thank you for calling Planned Parenthood, this is Randall Terry, how may I help you?)

If Leavitt's intent is as broad as his broadly worded regulation to suggest, your right to health care – all health care – will be determined by the sensitivities of nearly every person in a white smock, and even perhaps others. Your doctor may not have a problem giving you that prescription, but will the pharmacist fill it? And, if so, will the pro-life cashier ring it up? Women have had to run an obstacle course to get reproductive health care in recent years. If we leave it to Leavitt, the number of obstacles will grow.

The Department of Health and Human Services has opened a 30-day comment period on the proposed regulation. Here are the directions to register your point of view:

You may submit electronic comments on this regulation to http://www.Regulations.gov or via e-mail to consciencecomment@hhs.gov. To submit electronic comments to www.Regulations.gov, go to the Web site and click on the link “Comment or Submission” and enter the keywords “provider conscience”. (Attachments should be in Microsoft Word, WordPerfect, or Excel; however, HHS prefers Microsoft Word.)

By regular mail. You may mail written comments (one original and two copies) to the following address only: Office of Public Health and Science, Department of Health and Human Services, Attention: Brenda Destro, Hubert H. Humphrey Building, 200 Independence Avenue, S.W., Room 728E, Washington, DC, 20201