DEPARTMENT OF HEALTH AND HUMAN SERVICES
AGENCY: Office of the Secretary
ACTION: Proposed Rule
SUMMARY: The Department of Health and Human Services proposes to promulgate regulations to ensure that, in accordance with the Church Amendments (42 U.S.C. § 300a-7), Public Health Service (PHS) Act §245 (42 U.S.C. § 238n), and the Weldon Amendment (Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 508(d), 121 Stat. 1844, 2209), Department funds do not support morally coercive or discriminatory practices or policies in violation of federal law. This notice of proposed rulemaking proposes to define key terms, and to ensure that recipients of Department funds know about their legal obligations under these nondiscrimination provisions, the Department proposes to require written certification by recipients that they will comply with all three statutes.
This is a confidential, deliberative, pre-decisional document and does not necessarily reflect current policy efforts or plans. For official use only.
[This document was leaked and is not a final draft.]
I. Background
Religious liberty and freedom of conscience have long been protected in the Constitution and laws of the United States. The U.S. Congress and State legislatures have enacted, and Presidents and State governors have signed, laws making it illegal for institutions to discriminate against individuals on the basis of religion in hiring, promotion, and benefit practices; requiring employers to provide reasonable accommodation for employees’ religious beliefs in the workplace; protecting conscientious objectors in time of war, regardless of whether they objected on religious or philosophical grounds; protecting objecting individuals from participating in executions; protecting individuals’ consciences in health service programs and research activities funded by the federal government; and protecting the rights of all health care entities, individual or institutional, from being forced to participate in certain activities.
[Congess has already passed laws protecting religious beliefs in the workplace. This is, overall, a good thing. However, it also applies to medicine, which is problematic.]
Workers in all sectors of the economy enjoy legal protection of their consciences and religious liberties. In the health care industry, there are several statutory provisions that specifically address individuals’ religious and conscience rights. These federal statutes prohibit recipients of certain federal funds from coercing individuals into participating in actions they find religiously or morally objectionable. These same provisions also prohibit discrimination on the basis of one’s objection to or participation in specific procedures, including abortion or sterilization, or one’s participation in or refusal to participate in abortion or sterilization procedures. More recently, statutory provisions and appropriations riders have been enacted that prohibit federal programs and State and local governments from discriminating against individuals and institutions that refuse to, among other things, provide, refer for, pay for, or cover, abortion.
[Specifically, these statutes prohibit health care institutions and providers from discriminating against -- i.e., not hiring -- people who do not wish to perform certain medical duties.]
Conscience Clauses/Church Amendments [42 U.S.C. § 300a-7]
The conscience provisions contained in 42 U.S.C. § 300a-7 (collectively known as the “Church Amendments”) were enacted at various times during the 1970s in response to debates over whether receipt of federal funds required the recipients of such funds to provide abortions or sterilizations.
The first conscience provision in the Church Amendments, 42 U.S.C. § 300a-7(b), provides that “[t]he receipt of any grant, contract, loan, or loan guarantee under [certain statutes implemented by the Department of Health and Human Services] . . . by any individual or entity does not authorize any court or any public official or other public authority to require”: (1) the individual to perform or assist in a sterilization procedure or an abortion if it would be contrary to his/her religious beliefs or moral convictions; (2) the entity to make its facilities available for sterilization procedures or abortions, if the performance of sterilization procedures or abortions in the facilities is prohibited by the entity on the basis of religious beliefs or moral convictions; or (3) the entity to provide personnel for the performance of sterilization procedures or abortions if it would be contrary to the religious beliefs or moral convictions of such personnel.
[These older clauses indicate that organizations or individuals may not force individuals to perform sterilizations or abortions, are not required to make their facilities or other personnel available for such procedures. In other words, they would not only support the doctor who did not wish to terminate a pregnancy, but would not be required to provide another doctor to do it, or even to allow it to be performed by another doctor coming into the facility.]
The second conscience provision in the Church Amendments, 42 U.S.C. § 300a-7(c)(1), prohibits any entity which receives a grant, contract, loan, or loan guarantee under certain Department-implemented statutes from discriminating against any physician or other health care personnel in employment, promotion, termination of employment, or the extension of staff or other privileges because the individual either “performed or assisted in the performance of a lawful sterilization procedure or abortion,” or “because he refused to perform or assist in the performance of such a procedure or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting sterilization procedures or abortions.”
[While it also protects those who are willing to perform abortions or sterilizations, thiis clause also prevents institutions receiving certain funds from hiring or terminating an employee becaues of refusal to perform his duties, meaning those individuals unwilling to serve cannot legally be removed for that sole reason.]
The third conscience provision, contained in 42 U.S.C. § 300a-7(c)(2), prohibits any entity which receives a grant or contract for biomedical or behavioral research under any program administered by the Department from discriminating against any physician or other health care personnel in employment, promotion, termination of employment, or extension of staff or other privileges “because he performed or assisted in the performance of any lawful health service or research activity,” or “because he refused to perform or assist in the performance of any such service or activity on the grounds that his performance of such service or activity would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting any such service or activity.”
[This clause extends the above to apply to researchers.]
The fourth conscience provision, 42 U.S.C. § 300a-7(d), provides that “[n]o individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by [the Department] if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”
[This clause again restates that individuals cannot be required to participate in activities to which they object.]
The final conscience provision contained in the Church Amendments, 42 U.S.C. § 300a-7(e), prohibits any entity that receives a grant, contract, loan, or loan guarantee under certain Departmentally implemented statutes from denying admission to, or otherwise discriminating against, “any applicant (including for internships and residencies) for training or study because of the applicant’s reluctance, or willingness, to counsel, suggest, recommend, assist, or in any way participate in the performance of abortions or sterilizations contrary to or consistent with the applicant’s religious beliefs or moral convictions.”
[This clause means that they cannot discriminate against interns and residents who will not perform abortions or sterilization.]
Public Health Service Act § 245 [42 U.S.C. § 238n]
Enacted in 1996, section 245 of the Public Health Service Act (PHS Act) prohibits the Federal government and any State or local government receiving federal financial assistance from discriminating against any health care entity on the basis that the entity refuses to: (1) receive training in abortion; (2) provide abortion training; (3) perform abortions; (4) provide referral for such abortions; or (5) provide referrals for abortion training. In addition, PHS Act section 245 requires that, in determining whether to grant legal status to a health care entity (including a State’s determination of whether to issue a license or certificate such as a medical license), the Federal government and any State or local government receiving federal financial assistance deem accredited any post-graduate physician training program that otherwise would be accredited but for the reliance on an accrediting standard that requires an entity: (1) to perform induced abortions; or (2) to require, provide, or refer for training in the performance of induced abortions, or make arrangements for such training.
[No federal or state government may discriminate against any health care providers or individuals for refusing to receive or provide abortion training, provide abortions, provide referral for abortions, or provide referrals for abortion training. In other words, if the hospital or doctor you see won't provide an abortion, they cannot be discriminated against if they won't refer you for one. Also, if a facility doesn't train for abortion, but will not refer a student to one that will, they cannot be discriminated against. It also exempts training in abortions as a requirement for a postgraduate degree.]
Weldon Amendment [Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 508(d), 121 Stat. 1844, 2209]
The Weldon Amendment provides that “[n]one of the funds made available under this Act may be made available to a Federal Agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” It also defines “health care entity” to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.”
[Again, discrimination against those who will not provide abortions is prohibited. Furthermore, a health care entity is defined to include hospitals, sponsored organizations, insurance companies, etc., etc. In other words, if your insurance won't cover an abortion, they are not to be held accountable for this.]
The Laws In The Courts
The federal courts have recognized the breadth and importance of statutory and other conscience protections for health care professionals and workers. Shortly after its passage, a federal appellate court decision characterized the importance of conscience protections contained in the Church Amendments. Faced with the question of a denominational hospital’s right to refuse to perform sterilization procedures, the Ninth Circuit affirmed a lower court decision protecting the hospital’s right to refuse to perform sterilizations and abortions on religious or moral grounds: “If [a] hospital’s refusal to perform sterilization [or, by implication, abortion] infringes upon any constitutionally cognizable right to privacy, such infringement is outweighed by the need to protect the freedom of religion of denominational hospitals ‘with religious or moral scruples against sterilizations and abortions.’” Taylor v. St. Vincent’s Hospital, 523 F.2d 75, 77 (9th Cir. 1975) (citations omitted).
[Federal courts have in the past sided with denominational -- religious -- hospitals and against patients seeking abortions. This doesn't seem that bad until you realize how very, very many hospitals are denominational. In many areas, such a hospital is the only available hospital.]
The Problem
Despite the fact that several conscience statutes protecting health care entities from discrimination have been in existence for decades, recent events suggest the public and people in the health care industry are largely uninformed of the protections afforded to individuals and institutions under these provisions. This lack of knowledge in the health professions can be detrimental to conscience and other rights, particularly for individuals and entities with moral objections to abortion and other medical procedures.
[Many people and institutions are unaware that those who object to providing certain medical procedures are protected by law. The writers of this document perceive this as a problem.]
A recent New England Journal of Medicine (NEJM) study surveyed doctors’ attitudes toward treatments like euthanasia, abortion, and the issuance of contraception to minors without parental consent. They found that, although many physicians oppose the procedures (52% objected to abortion for failed contraception, for example), 86% felt they were obligated to present all options regardless of their own objections and 71% believed physicians were obligated to assist objectionable procedures by referring the patient to another clinician.
[Despite these protections, studies found that lots of doctors object to doing certain things, yet believed they were obligated to do it anyway, or to refer the patient to another clinician.]
A
New York Times editorial commenting on the NEJM study criticized physicians who refuse to present treatment options they deem immoral: “Any doctors who cannot talk to patients about legally permitted care because it conflicts with their values should give up the practice of medicine.” Several letters to the editor concurred in The New York Times’s conclusion. “It is the height of hypocrisy for a doctor to engage in immoral acts like withholding accurate information (or deliberately misinforming a patient by exaggerating risks) in the name of ‘morality.’ Fundamentalist religious beliefs may be an explanation for why these doctors feel the way they do, but religious beliefs should not be an excuse for unethical behavior.”
[The NYT was sensible enough to call out physicians who refuse to carry out their duties. It's a pretty awesome quote.]
Recently both New York and California have passed laws requiring employers offering employee prescription drug benefits to pay for contraception. Both statutes have narrow religious exceptions, yet they do not protect faith-based charities, hospitals, or other faith-based organizations.
[Some states require insurance to pay for birth control. The drafters of this documentt feel the religious exceptions are too narrow.]
Under a bill recently considered in the Colorado legislature, the attorney general of Colorado would be allowed to consider “reductions in the availability and accessibility of health care services in the communities served by the hospital,” in determining whether he or she will allow such a transaction to continue as the parties originally planned. Some have interpreted the provisions of this bill to empower the State attorney general: (1) to prevent hospitals with policies against providing abortions from acquiring hospitals that do provide abortions; or (2) to require those hospitals that do not provide abortions to provide abortions, if the acquisition of the other hospital will result in the loss of abortion services in the hospital being purchased.
[A bill considered in Colorado can be interpreted to mean that a non-abortion-providing hospital cannot buy out an abortion provider, or, if they do, they must then begin providing abortions.]
In 2005, Illinois Governor Rod Blagojevich issued executive orders requiring “a retail pharmacy serving the general public [… to] dispense the contraceptive, or a suitable alternative permitted by the prescriber, to the patient or the patient's agent without delay,” over the objection of pharmacist groups.
[The Governor of Illinois ordered pharmacists to provide contraceptives without delay.]
In May 2007, Connecticut passed a law requiring all hospitals to distribute Plan B to rape victims, despite religious organizations’ objections to the abortifacient nature of the drug.
[Connecticuit requires hospitals to distribute Plan B on demand to rape victims, regardless of objections.]
A New Jersey law requires pharmacies to fill prescriptions “despite any conflicts of employees to filling a prescription and dispensing a particular prescription drug or device due to sincerely held moral, philosophical or religious beliefs.”
[New Jersey requires pharmacies to fill prescriptions, period. Awesome. Yet clearly a problem for the people drafting this document.]
Massachusetts and New Mexico have passed laws similar to the laws and executive orders in Connecticut, Illinois, and New Jersey.
[Also, Massachusetts and New Mexico are pretty cool. Fundies disapprove.]
In May 2005, the Catholic Medical Association, an organization of Catholic physicians in the United States and Canada, reported “receiv[ing] numerous reports of pressure and persuasion being exerted on medical students, clerkships, and residents in public and private hospitals to conform to institutional policies and ‘accept their share’ of duties requiring performance of participation in activities contrary to Catholic ideology.”
[Religious people think it's unfair that they are required to perform their duties, and whine about it a lot. Clearly, it's unfair and they're being persecuted.]
Lawsuits, editorials, and media reports have appeared throughout the United States detailing efforts to require individuals and institutions to provide controversial medicine or services in violation of their conscience and describing instances of discrimination against those who act according to their conscience.
["Good lord! Even the media are getting into the act. People are noticing! And there have been lawsuits! Against religious people! Who won't do their jobs! Woe!"]
The foregoing examples appear to indicate an increasingly pervasive attitude toward the health care professions-namely, that health care personnel and institutions should be required to violate their consciences by providing or assisting in the provision of controversial medicine or procedures, or else face being blacklisted, excluded from practice, terminated from their jobs, or otherwise subjected to discrimination.
[People are starting to believe that health care workers should do their jobs, and that the provider's conscience is not as important as their patient rights. Affected health care workers are upset that the practice of discriminating against patients based on religious beliefs is coming under fire.]
The Department’s Response
In general, the Department is concerned that the development of an environment in the health care industry that is intolerant of certain religious beliefs, ethnic and cultural traditions, and moral convictions may discourage individuals from underrepresented and diverse backgrounds from entering health care professions. Additionally, religious and faith-based organizations have a long tradition of providing medical care in the United States, and continue to do so today. A trend that isolates and excludes some among various religious, cultural, and ethnic groups from participating in the health care industry is especially troublesome when considering current and anticipated shortages of health care professionals in many medical disciplines facing the country.
[The Department is afraid that by requiring people to do their jobs, they might discourage diversity in the workplace, presumably by excluding those groups most likely to hold strong religious convictions. I personally would rather have a shortage of health care professionals than a surplus of "professionals" I could not trust to provide basic and essential care.]
More importantly, the various branches of the federal government have considered these issues and have repeatedly reached the same resolution. This is true in the executive agencies, the federal courts, and in Congress, as described above. Individuals and entities are free to hold and express an attitude that is intolerant of others’ beliefs that they should refrain from certain practices based on their religious beliefs or moral convictions. A violation of federal law occurs, however, when individuals and entities, while at the same time receiving certain federal funds, express this attitude in actions that discriminate against others.
[In other words, we're free to hate these people, but cannot actually take action to rid the healthcare industry of them because that would be unfair. To people who don't want to do their jobs. The rights of patients to make their own health care choices are of secondary importance.]
The examples above and others demonstrate the need for the Department to educate the public and the health care industry on long-standing federal conscience and other protections and to take steps to better ensure the enforcement of these protections.
The Department also notes that, while many recipients of Department funds currently must certify compliance with federal nondiscrimination laws, federal conscience protections are not mentioned in existing forms. The Department seeks to raise awareness of federal conscience laws by specifically including reference to the nondiscrimination provisions contained in the Church Amendments, PHS Act §245, and the Weldon Amendment in certifications currently required of most existing and potential recipients of Department funds.
[The Department wants everyone to be aware that they can refuse to do anything they don't want to do, so long as it's on moral or religious grounds. They want to make sure this is mentioned on applicable government forms.]
Toward these ends, the Department has concluded that regulations and related efforts are necessary, in order to (1) educate the public and the health care industry on the obligations imposed and protections afforded by federal law; (2) work with State and local governments and other recipients of funds from the Department to ensure compliance with the nondiscrimination requirements embodied in the Church Amendments, PHS Act § 245, and the Weldon Amendment; (3) when such compliance efforts prove unsuccessful, to enforce these nondiscrimination laws through the various Department mechanisms to ensure that Department funds do not support morally coercive or discriminatory practices or policies in violation of federal law; and (4) to otherwise take an active role in promoting open communication within the healthcare industry, and between providers and patients, fostering a more inclusive, tolerant environment in the health care industry than may currently exist.
[The Department thinks that the public and the health care industry need to be educated about these rights, and wants to work with state and local governments to ensure compliance with these laws. If this is not successful, compliance will be enforced. This will, in theory, lead to a more tolerant industry. For the doctors and staff who refuse to do their jobs, not the patients.]
These proposed actions are consistent with the Administration’s current efforts to ensure that community and faith-based organizations are able to participate in federal programs on a level playing field with other organizations. More importantly, they are intended to promote compliance with federal conscience and other protections for health care personnel and entities and to ensure that recipients of federal funds are not discriminating in violation of federal law.
[Religious institutions that allow employees to refuse to perform their duties should be protected.]
II. Summary of the Proposed Rule
This proposed rule sets out, and provides further definition of, the rights and responsibilities created by the federal nondiscrimination provisions. This proposed rule would also require recipients of Department funds to certify compliance with these requirements as a prerequisite to the receipt of funds. This proposed rule, in order to ensure proper enforcement, would define certain terms for the purposes of this proposed regulation.
. . . If the Department becomes aware that a State or local government or an entity may be in violation of the requirements or prohibitions proposed herein, the Department would work with such government, or entity to assist such government, or entity to come into compliance with such requirements or prohibitions. If, despite the Department’s assistance, compliance is not achieved, the Department will consider all legal options, including termination of funding and retrieval of previous funding under 45 C.F.R. 74, claims under the Program Fraud Civil Remedies Act, and other measures.
[If institutions don't comply, they may have their funding withdrawn, and may be charged with fraud and sued for retrieval of previous funds.]
III. Provisions of the Proposed Rules
§ 45 CFR x.1 Definitions
Abortion: An abortion is the termination of a pregnancy. There are two commonly held views on the question of when a pregnancy begins. Some consider a pregnancy to begin at conception (that is, the fertilization of the egg by the sperm), while others consider it to begin with implantation (when the embryo implants in the lining of the uterus). A 2001 Zogby International American Values poll revealed that 49% of Americans believe that human life begins at conception. Presumably many who hold this belief think that any action that destroys human life after conception is the termination of a pregnancy, and so would be included in their definition of the term “abortion.” Those who believe pregnancy begins at implantation believe the term “abortion” only includes the destruction of a human being after it has implanted in the lining of the uterus.
[Some people think pregnancy begins at conception. Ergo, those people would define abortion as anything that prevents an egg from implanting in the uterus as "abortion." The opinion of non-doctor, non-lawyer Americans is somehow important to the legal and medical definition of "abortion."]
Both definitions of pregnancy inform medical practice. Some medical authorities, like the American Medical Association and the British Medical Association, have defined the term “established pregnancy” as occurring after implantation. Other medical authorities present different definitions. Stedman’s Medical Dictionary, for example, defines pregnancy as “[t]he state of a female after conception and until the termination of the gestation.” Dorland’s Medical Dictionary defines pregnancy, in relevant part, as “the condition of having a developing embryo or fetus in the body, after union of an oocyte and spermatozoon.”
[In fact, some medical authorities believe that life begins at conception, too.]
Because the statutes that would be enforced through this regulation seek, in part, to protect individuals and institutions from suffering discrimination on the basis of conscience, the conscience of the individual or institution should be paramount in determining what constitutes abortion, within the bounds of reason. As discussed above, both definitions of pregnancy are reasonable and used within the scientific and medical community. The Department proposes, then, to allow individuals and institutions to adhere to their own views and adopt a definition of abortion that encompasses both views of abortion. Therefore, for the purpose of these proposed regulations, and implementing and enforcing the Church Amendment, Public Health Service Act §245, and the Weldon Amendment, the Department proposes to define abortion as “any of the various procedures-including the prescription and administration of any drug or the performance of any procedure or any other action-that results in the termination of the life of a human being in utero between conception and natural birth, whether before or after implantation.”
[When determining what constitutes abortion, the conscience of the individual or institution should be used. Therefore, all of the acts and laws and regulations above applying to abortion can now be considered to apply to "abortion" as it is perceived by those who think that abortion is anything that prevents implantation of a fertilized egg. Such laws could then be applied in the narrowest possible way, to protect the consicences of people who would be better off with a less morally troubling job, such as fry cook.]
Assist in the Performance: The Department, in considering how to interpret the term “assist in the performance,” seeks to provide broad protection for individuals’ consciences. The Department seeks to avoid judging whether a particular action is genuinely offensive to an individual. . . . Therefore, the Department proposes to interpret this term broadly, as encompassing individuals who are members of the workforce of the Department-funded entity performing the objectionable procedure. When applying the term “assist in the performance” to members of an entity’s workforce, the Department proposes to include participation in any activity with a logical connection to the objectionable procedure, including referrals, training, and other arrangements for offending procedures. For example, an operating room nurse would assist in the performance of surgical procedures, and an 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.
[When the Department says "assist in the performance," they mean everyone connected with the "offending" procedure, from nurses to techs to those people whose duty it is to refer or schedule such procedures. Everyone.]
Health Care Entity / Entity: . . . As the Department has previously indicated, the definition of “health care entity” in PHS Act § 245 encompasses institutional entities, such as hospitals and other entities. The Weldon Amendment defines the term “health care entity” as “includ[ing] an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” The Church Amendment does not define the term “entity,” and does not use the term “health care entity.”
In keeping with the definitions in PHS Act §245 and the Weldon Amendment, the Department proposes to define “health care entity” to include the specifically mentioned organizations from the two statutes. It is important to note that the Department does not intend for this to be a comprehensive list of relevant organizations for purposes of the regulation, but merely an exemplary list.
["Entity" has a really broad definition, from doctors to hospitals to HMOs to insurance plans. And that's not a complete list. In other words, again, your insurance company could object to what you want or need to do with your body, and could not be held responsible. This list is not comprehensive, and is subject to expansion.]
Health Service / Health Service Program: . . . In developing an appropriate definition for “health service program,” we have looked at the Social Security Act. Section 1128B(f)(1) of the Social Security Act, 42 U.S.C. §1320a-7b(f)(1) defines the similar term “federal health care program” as “any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States government.”
Accordingly, the term “health service program” should be understood to include an activity related in any way to providing medicine, health care, or any other service related to health or wellness, including: programs where the Department provides care directly (e.g., Indian Health Service); programs where grants pay for the provision of health services (e.g., HRSA programs such as community health centers); programs where the Department reimburses another entity that provides care (e.g., Medicare); and health insurance programs where federal funds are used to provide access to health coverage (e.g., SCHIP, Medicaid, and Medicare Advantage). Similarly, we propose that the term “health service” means any service so provided.
. . . .
Workforce: We propose to define “workforce” as including employees, volunteers, trainees, and other persons whose conduct, in the performance of work for an entity, is under the control or authority of such entity, whether or not they are paid by the Department-funded entity. The definition is drawn from the “Administrative Data Standards and Related Requirements.”
[In other words, everything from janitors to volunteer candystripers.]
In defining both “individual” and “workforce,” the Department proposes definitions that provide a reasonable scope for the natural persons protected by 42 U.S.C. § 300a-7(d) and the corresponding provisions of these regulations. By limiting the scope of persons protected by these regulations to those who are under the control or authority of an entity that implements a health services program or research activity funded in whole or in part under a program administered by the Department, we provide the bright line necessary for Department-funded entities subject to the Church Amendment provisions to set policies or otherwise take steps to secure conscience protections within the workplace and, thus, to comply with the Church Amendment and these regulations.
. . . .
x.4 Written Certification of Compliance
In the “Written Certification of Compliance” section of the regulation, the Department seeks to require recipients and sub-recipients of Department funds to certify compliance with the Church Amendments, PHS Act § 245, and the Weldon Amendment, as applicable.
We have noted above the reported attitudes of many commentators and others within the health care industry toward health care personnel who desire to avoid performing or assisting in the performance of certain services. We are concerned that these reported attitudes may indicate a lack of knowledge on the part of States, local governments, and the health care industry of the rights of health care entities created by, and the corresponding obligations imposed upon the recipients of certain federal funding by, the non-discrimination provisions.
[The drafters of this document believe that people who won't do their jobs are discriminated against because people don't know that to do so is against the law. They do not believe it is because refusing to do your job, in this context, is the wrong thing to do.]
The proposed regulation requires that entities certify in writing that, as a material prerequisite to the receipt of certain federal funds, entities will operate in compliance with the Church Amendment, PHS Act §245, and the Weldon Amendment. Certification provides a demonstrable way of ensuring that the recipients of such funding know of, and attest that they will comply with, the applicable nondiscrimination provisions. Sub-recipients of federal funds-entities that will receive federal funds indirectly through another entity-are required to provide certification as set out in the “Certification of Compliance” section. This certification by sub-recipients is a certification made directly to the Department, and is a material prerequisite to the payment of funds by the Department to the principal recipient of funds.
[Before federal funds will be distributed, paperwork must be signed stating that employers and employees will operate in compliance with federal non-discrimination law that protects those who will not do their jobs due to conscience.]
If a recipient or a sub-recipient of federal financial assistance violates the antidiscrimination protections, the fact that it has certified that it would not so discriminate may provide additional remedies for the Department, as well as the affected entity or entities, including actions brought under the False Claims Act and the Program Fraud Civil Remedies Act of 1986.
The False Claims Act allows anyone with knowledge of a fraud against the federal Government to bring a claim against the defrauding individual or organization on behalf of the Government. Successful litigants are eligible to receive up to 30% of the collected damages, which includes fines of up to $10,000 and three times the actual damages suffered by the government.
[If an organization receiving federal funds breaks this law, any individual who notices discrimination may sue on the government's behalf, and may be awarded part of the damages as an incentive.]
The Program Fraud Civil Remedies Act of 1986 (PFCRA) enables agencies to bypass courts and create administrative procedures to combat fraud. Under the PFCRA, the Department created a regulatory scheme to handle fraudulent claims. 45 C.F.R. Part 79 sets up guidelines and procedures before an Administrative Law Judge in the case of fraud arising when an entity applies for any contract, grant, loan, or benefit from the Department.
[Just read that again. The part where it says "bypass courts."]
IV. Request for Comment
The Department, in order to craft its final rule to best reflect the environment within the health care industry, seeks comment on several matters related to this Proposed Rule. In particular, the Department seeks the following:
Comment on all issues raised by the proposed regulation.
Information with regard to general knowledge or lack thereof of the protections established by these nondiscrimination provisions, including any facts, surveys, audits, reports, or any other evidence of knowledge or lack of knowledge on these matters in the general public, as well as within the healthcare industry and educational institutions.
In the years following Roe v. Wade, there was some confusion about whether the receipt of federal funds permitted public officials to require entities to provide abortions or perform sterilizations. The debate was resolved, and statutory provisions like Section (b) of the Church Amendments were promulgated to protect entities from public authorities who would claim that the receipt of federal funds creates a legal obligation for the entity to provide abortions. The Department seeks information, including any facts, surveys, audits, or reports on whether this remains an issue, that is, do public authorities continue to claim that the receipt of federal funds is sufficient basis for entities to be required to provide abortions or perform sterilizations. If so, how, if at all, should the Department address this problem?
As noted above, it is unclear to what extent there is knowledge of the protections afforded by the nondiscrimination provisions, and the Department is specifically seeking comment on the issue. The Department also seeks comment on what are the most effective methods of educating recipients of Department funds, their employees, and participants of the protections against discrimination found in the Church Amendments, (PHS) Act §245, and the Weldon Amendment. What is the best method for communicating to the public the protections afforded by these statutes, and any regulation implementing them?
One option is to require the physical posting of notices of nondiscrimination protections in conspicuous places within the buildings of recipients of funds, and on applications to educational programs that are recipients of funds. Have notices been effective educational tools with respect to individuals’ rights under federal law?
Another option is to require inclusion of nondiscrimination protections in applications for training, residency, and educational programs.
Another option is requiring notice of nondiscrimination protections on websites and in employee / volunteer handbooks of recipients.
The Department seeks further comment on this matter-both on the merit of the options mentioned, and on new ideas for educating the public.
Executive Order 13132-Federalism
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts State law, or otherwise has Federalism implications.
All three acts enforced in this proposed regulation- the Church Amendments, PHS Act §245, and the Weldon Amendment-impose restrictions on states, local governments, and public entities receiving funds under certain Department-implemented statutes. Insofar as these regulations impact state and local governments, they do so only to the extent that States, local governments, and public entities are out of compliance with existing federal conscience statutes. Since we expect the recipients of Department funds to comply with existing federal law, we anticipates the impact on States and local governments to be negligible.
[According to the people who drafted this document, since there are already federal laws in place governing institutions receiving federal funds, this proposal will not affect state or local governments much.]
On the other hand, the proposed regulation may suggest interpretations of statutory terms that are broader than the interpretations many states or local governments may have followed to date. In particular, the terms “abortion” and “assist in the performance” have been defined by this proposed regulation to provide broad conscience protections for health care entities. While the proposed regulatory action does not preempt any state laws, it seeks to enforce federal law restricting the expenditure of funds among all current recipients of Department funds, including States, to entities that comply with federal law.
[This document has been drafted to define terms as widely as possible to allow the widest "protection" for people who object to performing abortions, etc. This doesn't preempt existing state laws, but it does mean that federal funds will only be given to organizations that comply with federal law.]
The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other[…] There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy. Rust v. Sullivan, 500 U.S. 173,193 (1991)
["Playing favorites is not unconstitutional, even if it means removing room for the other point of view entirely."]
In this instance, the Department is proposing to fund programs in a way that ensures compliance with federal conscience protections for health care entities. At the same time, the Department seeks to avoid funding programs that engage in illegal discrimination. The proposed regulation does so without infringing on any state or local statutes, and will have an impact on state and programs only insofar as they engage in illegal discrimination according to the definitions set out in the statutes. The Department will consult with States and local governments to seek ways to minimize any burden imposed on the States and local governments by these proposed regulations, consistent with meeting the Department’s objectives of ensuring: (1) knowledge of the obligations imposed, and the rights and protections afforded, by these federal nondiscrimination provisions; and (2) compliance with the nondiscrimination provisions.
[By supporting entities that define abortion as broadly as possible, the definition of abortion will be expanded in practice, if not legally, and anyone who wishes to object or desert their duties may do so under the protection of federal law. Organizations that do not allow this will not receive federal funding.]
ANALYSIS OF IMPACTS
Executive Order 12866-Regulatory Planning and Review
HHS has examined the economic implications of this proposed rule as required by Executive Order 12866 (as amended September 30, 1993) . . . classifies a rule as significant if it meets any one of a number of specified conditions, including: having an annual effect on the economy of $100 million, adversely affecting a sector of the economy in a material way, adversely affecting competition, or adversely affecting jobs. A regulation is also considered a significant regulatory action if it raises novel legal or policy issues. HHS has determined that this proposed rule is not a significant regulatory action as defined by Executive Order 12866.
[According to this definition of "significant," this document would not have a significant impact. Note the lack of any mention of patients here.]
An underlying assumption of this regulation is that the health care industry, including entities receiving Department funds, will benefit from more diverse and inclusive workforces by informing health care workers of their rights and fostering an environment in which individuals from many different faiths and philosophical backgrounds are encouraged to participate. As a result, we cannot accurately account for all of the regulation’s future benefits, but the Department is confident that the future benefits will exceed the costs of complying with the regulation.
[It will be good for everyone to have more religious people in science-based fields. No, really.]
We estimate that each of the 503,904 funding recipients will spend 15 minutes reviewing the certification language and reviewing files before signing. According to BLS wage data, the mean hourly wage for a Medical and Health Services Manager is $40.86. We estimate the loaded rate to be $61.29. Thus, the cost associated with the act of certification is $7.7 million (503,904 x .25 x $61.29).
["We only expect people to spend 15 minutes before agreeing to something this heinous."]
Indirect costs associated with the certification requirement might include costs for such actions as staffing/scheduling changes and internal reviews to assess compliance. Potential liability costs for certifiers include the defense costs, paying settlements or judgments, and paying fines resulting from actions brought by individuals claiming discrimination. There is insufficient data to estimate the number of funding recipients not currently compliant with the Church Amendments, PHSA § 245, or the Weldon Amendment, as applicable. However, because together these three federal statutes have been in effect for many years, we expect indirect certification costs and potential liability costs for Department funding recipients to be minimal.
The total quantifiable costs of the proposed regulation, if finalized, are estimated to be $7.9 million in the first year. We anticipate the costs to be lower in subsequent years; we believe that very few new entities will be required to implement the requirements of this regulation.
Regulatory Flexibility Act
HHS has examined the economic implications of this proposed rule as required by the Regulatory Flexibility Act (5 U.S.C. 601-612). If a rule has a significant economic impact on a substantial number of small entities, the Regulatory Flexibility Act requires agencies to analyze regulatory options that would lessen the economic effect of the rule on small entities. This proposal, if finalized, will not impose significant costs on small entities. Therefore, the Secretary certifies that this rule will not result in a significant impact on a substantial number of small entities.
[Note again the emphasis on cost, and not on the effect on patients.]
[In summary, if a summary can be given of such a thing, this document proposes enforcing existing federal laws which protect those persons and organizations attached to the medical profession from "discrimination" based on their refusal to provide a service. It also redefines several terms, including abortion, in a dangerously wide way that opens the door for massive abuse of patient rights.
So. Now you see why I'm so worried. That is subtle, insidious, and entirely horrifying.
What is just as bad is that I had not known that there were already federal laws in place which specifically prevent medical institutions from refusing to hire people who will not perform their jobs.
People, I understand conscience. I really do. I don't want people to have to do things they do not want to do. I strongly feel, therefore, that people who cannot cope with abortion, who object to contraception, should not be in medicine. Those two things are cornerstones of health care, as well as basic human freedom. Anyone who would deny them to a patient based on their conscience does not have anyone's best interests at heart. Only their own.
I also understand these people do not want to have anything to do with what they see as taking a human life. Again, if that is the case, if a person's grasp of biology and medicine is so weak that one can actually believe that a fertilized egg is of equal or greater importance than a woman's right to determine the course of her own life, I do not believe that person has any place whatsoever in medicine.
I'm not really open to debate on these points, and I am warning everyone of that well in advance. If you wish to debate, do so in your own journals. That is what they are for.
This, if passed, would be disastrous, and I urgently request that you do something. Write a letter, speak to someone, pass the word around. This must not go unchallenged. Too much ground has been lost already. This is a very real danger to the reproductive freedom of all human beings. If this sort of thing is allowed to spread, it is going to affect you, your siblings, your children, your friends, everyone you know.
Please write or make a phone call. Please do something. Please. These are your rights, too.