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September 24, 2008

Office of Public Health and Science

Department of Health and Human Services

Hubert H. Humphrey Building,

200 Independence Avenue, SW., Room 728E

Washington, DC 20201

*Attention:* Brenda Destro

RE: **Provider Conscience Regulation**

Dear Secretary Leavitt:

The ACLU of Arkansas (the "ACLU") appreciates the opportunity to submit
comments on the proposed rule published at 73 Fed. Reg. 50274 (the
"proposed rule" or "proposed regulations"). The ACLU, which has over
1,500 members in Arkansas, has a long history of vigorously defending
religious liberty, both through litigation and advocacy, and has been
equally vigilant in its efforts to safeguard reproductive rights.

Based on our commitment to both religious liberty and reproductive
freedom, the ACLU is uniquely positioned to address the issues raised
when religious belief affects decision-making about reproductive health
care. The ACLU strongly advocates solutions that balance the protection
of public health, patient autonomy, and gender equality with the
protection of individual religious belief and institutional religious
worship. To achieve this balance, we believe it is often possible to
accommodate an *individual* health care professional's religiously-based
refusal to provide a particular health service so long as the
professional takes steps to ensure that the patient can receive that
service elsewhere. However, because institutions \-- such as hospitals,
insurance companies and pharmacies \-- serve patients and customers of
all faiths and backgrounds, an institution's wholesale refusal to
provide services poses a much greater risk of harm to those who do not
share in those religious beliefs and should not be allowed to trump all
other important societal interests.

As explained in greater detail below, the proposed rule does not appear
to strike the appropriate balance between patient access and religious
liberty and could therefore seriously undermine women's ability to
obtain essential reproductive health services. The Department of Health
and Human Services (the "Department"), which is "the United States
government\'s principal agency for protecting the health of all
Americans and providing essential human services, especially for those
who are least able to help themselves," has the express responsibility
to further, not hinder, the public health. Accordingly, we urge the
Department to withdraw the proposed rule.

I.  *Authorizing Health Care Providers to Refuse to Provide Information
    and Counseling is Harmful, Unnecessary, and Unauthorized.*

The proposed rule appears to allow certain publicly funded health care
entities -- both individuals *and* institutions -- that have a religious
objection to performing abortions to refuse to provide women with even
the most basic information and counseling about the procedure. This
proposal is harmful, unnecessary, and unauthorized.

By permitting health care providers to withhold basic information and
counseling from their patients, and by absolving providers of their
legal and professional responsibility to the patient, the proposed rule
essentially abandons patients in the face of a health care provider's
refusal. Legal and ethical principles of informed consent require
physicians to inform patients about all treatment options, including
those to which the physician objects or those which he or she does not
provide. Yet the proposed rule seems designed to do away with these
essential safeguards. Instead, as a direct result of the proposed rule,
patients may never be able to access the refused health care -- or even
know about their right or option to do so -- due to their geographic,
economic, or health care plan limitations.

The proposed rule is not only harmful to women's health, but it is also
unnecessary: existing federal law already protects *both* individual
religious liberty and access to reproductive health care services. For
more than four decades, Title VII of the Civil Rights Act ("Title VII")
has required an employer to attempt to accommodate current and
prospective employees' refusals to provide *any* health care service on
the basis of their religious beliefs, so long as the accommodation does
not pose an undue hardship on the employer's overall ability to provide
health care services to its patients. Title VII thus contemplates a
careful balancing of interests and gives employers leeway to take into
account the effect of an employee's refusal on public health and safety.
At the same time, Title VII seeks the maximum possible accommodation of
an individual's religious objection.

The ACLU is concerned that the proposed regulations will take patients'
needs out of this equation. As described above, the regulations could
completely exempt a health care provider from providing a patient with
information about her condition, as well as medically accepted treatment
options, suggesting for the first time that religious refusals should
*trump* patients' basic health care needs. Proceeding from our profound
respect for both reproductive rights and religious liberty, the ACLU
strongly believes that the Department should abandon any efforts to
upset the existing balance.

Finally, the proposed rule is an unauthorized exercise of the
Department's rulemaking power. There is simply no evidence that Congress
ever intended the Church, Coats and Weldon Amendments to allow a health
care provider to ignore patient needs. If anything, the longstanding
application of Title VII law demonstrates Congress's sensitivity to the
balance between individual religious belief and a patient's ability to
access the services she needs. Moreover, Congress has long required
federally funded health care providers in the Title X program to provide
patients with counseling about *all* of their options, including
abortion. Thus, there is no statutory basis for the proposed rule which
so blatantly disregards women's basic reproductive health needs.

II. *Authorizing Health Care Providers to Refuse to Provide
    Contraceptive Services Undermines Public Health Gains and is an
    Unprecedented Expansion of Existing Refusal Laws*

The Secretary's statements to the press suggest that the Department
intends for the rule to create a new right for institutions and
individuals to refuse to provide contraceptive services. Such a rule
would undermine the public health and exceed the Department's regulatory
authority.

Access to safe and effective contraception is a critical component of
basic health care for women. Since 1965, when the U.S. Supreme Court
first protected a woman's access to contraception, maternal and infant
mortality rates have declined. In fact, the Centers for Disease Control
and Prevention has declared family planning one of the ten most
significant public health achievements of the 20^th^ century. The
reasons are simple: Without contraception, women have more unplanned
pregnancies and are less likely to obtain adequate and timely prenatal
care. Access to contraception is also essential to women's equality and
autonomy, allowing women to make educational, employment and life
choices that will benefit themselves and their families.

However, if the proposed rule is extended to cover contraception it
could undermine these important goals. For example, Title X -- the
nation's only federally funded family planning program -- has
successfully provided contraceptive services to millions of Americans
for almost forty years. Statistics compiled by the Guttmacher Institute
confirm that without the contraceptive services provided at publicly
funded clinics, there would be 46% more unintended pregnancies annually
in the United States. Yet, depending on the Department's interpretation
of the regulations, Title X providers could be forced to hire employees
who refuse to provide contraceptive information, counseling and
services; and organizations that are unwilling to provide women with
complete and accurate information and services could be able to claim
scarce federal family planning dollars.

Further, the Department's attempt to create a right to refuse
contraceptive services that runs to *institutions* exceeds its authority
under the promulgating statutes. The Church, Coats and Weldon Amendments
were never intended to allow institutional health care entities to
refuse to provide such services. To the extent the existing refusal
statutes extend protections to institutions, these protections are
plainly limited to abortion and in some instances, sterilization.

If the rule creates a new right for institutions to refuse to provide
contraceptive services, it could also undermine state reproductive
health laws by preventing states from enforcing important measures that
have expanded access to contraception. For instance, states could be
barred from enforcing laws that require health insurance policies that
cover prescription drugs to also cover the full range of FDA-approved
prescription contraceptive drugs and devices ("contraceptive equity"
laws) and laws requiring emergency care facilities to offer emergency
contraception (EC or "morning-after pill") to rape victims who come to
them for treatment ("EC in ER" laws). The refusal of institutions *as a
whole* to abide by reproductive health mandates directly affects
employees, patients, enrollees and customers of diverse backgrounds and
faiths. Providing an end-run around state laws that *protect* women's
health runs counter to the very purpose of the Department and could have
enormous public health consequences.

For example, the proposed regulations could prevent Arkansas from
enforcing its law that requires emergency facilities to provide
information about EC to rape survivors. This legislation was passed in
2007. The failure of hospitals and other facilities treating rape
victims to provide information about EC unacceptably leaves these women
at risk of becoming pregnant as a result of assault.  A woman who has
been raped should not be forced to seek additional medical care to learn
how she can prevent pregnancy.  In addition to the emotional burden
imposed by such a delay, the risk that a victim will become pregnant
increases the longer she is forced to wait to take EC. Unfortunately, in
some instances, a rape victim that is refused information about EC by
her hospital or health care facility may be unable to obtain EC at all.
The Department should not promulgate regulations that undermine the
enforcement of such laws that seek to provide comprehensive care to rape
survivors.

At a time when more and more Americans are either uninsured or
struggling with the soaring costs of health care, the Department should
be working to expand access to important health services, not working to
limit it.

For the reasons discussed above, we urge the Department to withdraw the
proposed rule. Should the Department insist upon proceeding with the
proposed rule, the agency should substantially modify its proposal in
accordance with the foregoing comments.

Sincerely,

Rita Sklar

Executive Director