September 25, 2008

Department of Health and Human Services

Office of Public Health and Science

Attn: Brenda Destro

Hubert Humphrey Building

200 Independence Avenue SW

Room 728E

Washington, DC 20201

Re: RIN 0991-AB48

Comments of the National Latina Institute for Reproductive Health, the
National Asian Pacific American Women's Forum, the Center for
Reproductive Rights and Other Organizations, Opposing the Proposed
Regulation Entitled "Ensuring that Department of Health and Human
Services Funds Do Not Support Coercive or Discriminatory Policies or
Practices In Violation of Federal Law"

[Introduction]{.underline}

The undersigned organizations write to express our grave concerns about
the regulation currently proposed by the Department of Health and Human
Services referred to as the "provider conscience" regulation
("Regulation"). Each of our organizations is committed to ensuring that
every woman has access to reproductive health care, placing special
emphasis on the needs of low-income women and women of color. The harsh
impact of this regulation will fall most heavily on low-income women
seeking reproductive health care who are dependent on government
programs for health care access, and other vulnerable groups, including
those seeking end-of-life care, persons affected by HIV/AIDS, and
lesbian, gay, bisexual and trans-sexual individuals. We highlight below
some, but not all, of the serious flaws in the Regulation, focusing
primarily on its impact on low-income and minority women.

The Regulation has the potential to seriously undermine access to health
care in this country. It will dramatically expand the reach of current
federal laws protecting health care workers, rather than simply
clarifying and enforcing them. It will create uncertainty in a number of
areas, including whether provisions that protect those opposed to
abortion services can be relied on to deny certain forms of
contraception. The Regulation also creates potential conflicts with
other federal laws, including Title VII, which strikes a careful balance
between the rights of employees to religious freedom, the rights of
employers, and, in the field of health care, the needs of patients. The
proposed Regulation will allow a broad range of health care workers,
including those only tangentially related to the provision of services,
to deny information and access to care.

While the Regulation is flawed in many specifics, the proposal's most
glaring defect is its failure to mention, much less address, the rights
and needs of patients. The limits on access to health care, confusion,
and uncertainty that are sure to follow should the Regulation be
approved -- the problems it will cause for individual patients -- is
nowhere taken into account. The cost-benefit analysis included with the
regulation, which is based on unfounded assumptions and which does not
even attempt to measure the cost of the Regulation from the "patient"
side of the equation, only highlights the Regulation's failing in this
respect.

The Regulation is hopelessly flawed and should be rejected outright.
Health care providers in this country who entertain religious or moral
objections to the provision of certain health care services are already
adequately protected by federal law. At the same time, low-income women
and women of color struggle every day to obtain the health care they
need. Too much is at stake for the women who will be denied access to
critical reproductive health care to continue with the dangerous course
set by this proposal.

[The Regulation Threatens to Undermine Access to Health
Care]{.underline}

The Regulation has the potential to change current federal laws
governing health care refusals in several ways that will negatively
impact patients seeking medical treatment and information. The three
laws which are affected by the proposed regulations, the Church
Amendment,[^1] the Weldon Amendment,[^2] and Section 245 of the Public
Health Service Act,[^3] already provide comprehensive protection for
health care workers who do not want to provide certain services based on
their religious beliefs or moral convictions.

A. The Regulation Could Lead to the Denial of Critical Contraception
Options

The Regulation creates dangerous uncertainty as to whether health care
providers could now rely on federal law permitting conscientious
refusals to provide abortion services to deny common forms of birth
control, such as the Pill and IUD's. The Department of Health and Human
Services ("the Department") created this ambiguity and should not now
move forward to finalize the Regulation when it fails to clearly address
this issue.

A preliminary draft of the Regulation included a definition of abortion
that encompassed methods of contraception which can in some instances
prevent implantation of a fertilized egg, such as the birth control pill
and IUDs. [^4] As a result, under the preliminary draft health care
providers were given explicit permission to refuse to provide these
forms of contraception on the grounds that they were equivalent to
providing abortion services. In the current draft of the Regulation, the
definition of abortion has been removed altogether, creating uncertainty
as to the extent to which the Regulation expands current federal refusal
laws. The suggestion from the preliminary draft, that abortion could
include some forms of contraception, has opened the door for health care
entities and individuals to define abortion expansively as a
justification for denying care.

The impact of the ambiguity over whether federally funded health care
providers can refuse to provide contraceptives will fall directly on
patients, and specifically on low-income women whose only access to
prescription birth control is through federal programs such as Medicaid
and Title X. While there are legal and administrative procedures in
place that will ultimately determine if a health care provider was
within its rights to equate contraception with abortion, those processes
will not ameliorate the harm done to individual women who have been
denied timely access to the birth control option that best meets their
needs.

> B. The Regulation Extends the Ability to Deny Services to Those With
> Minimal Connection to Patient Care

The Regulation extends the right to refuse health services to a broader
range of workers than previously permitted, including those who are only
tangentially related to the provision of health care. The Regulation
defines the term "assist in the performance"[^5] for the first time, and
also defines some of the terms included in this definition and used
elsewhere in the statutes, including, "individual,"[^6] "workforce,"[^7]
and "health service/health service program."[^8] In the description of
the definition for "assist in the performance," the Department states
that it "seeks to provide broad protection for individuals'
consciences," and that it "seeks to avoid judging whether a particular
activity is genuinely offensive to an individual."[^9] In defining
"health service program," the Department states that it 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\..."[^10]

By defining all of these terms broadly, the Regulation expands the
protection of the Church Amendment to individuals far outside the scope
of those who would have reasonably been considered to provide health
services under the current law, such as physicians, physician's
assistants, and nurses. These new definitions could allow almost any
worker in a health care setting to refuse to provide services to a
patient based on his or her religious or moral beliefs. Indeed, one of
the two examples in the description for the definition of "assist in the
performance," is of an employee whose task it is to clean instruments
following a particular procedure.[^11] The Regulation would thus expand
the right to refuse to a range of workers performing a variety of
services, such as receptionists who make appointments, claim adjustors
at health insurance companies, and custodians who work in clinics and
hospitals. Under these proposed regulations, health care institutions
could struggle to effectively provide care, and women could be delayed
or even prevented from receiving reproductive health care.

The Regulation's extension to the actions of such a broad range of
non-medical personnel who "assist in the performance of" objectionable
procedures clearly illustrates the proposal's lack of consideration for
the needs of patients; in no other area of medicine are tangentially
related individuals allowed to interfere with the provision of services
in a way that may delay or deny health care. The Regulation goes too far
in extending the right to deny services to individuals who are
marginally related to the medical care being provided. This broad
expansion could lead to serious disruptions in care and hamper the
ability of health care institutions to meet the needs of patients. Once
again, the Regulation tips the balance perilously away from what is best
for patients, and for this reason should be rejected.

> C. Inclusion of Counseling and Referrals in Federal Refusal Laws Could
> Deny Patients Timely Access to Care and Information Necessary to Make
> Informed Health Care Decisions

An additional problem with the proposed Regulation is its expansive
definition of what conduct amounts to "assisting in the performance" of
health care services. This definition is critical because federal law
allows health care providers to not only refuse to perform objectionable
services, but also to refuse to "assist in the performance" of those
services. The definition provided in the Regulation states that "assist
in the performance" includes "counseling, referral, training, and other
arrangements for the procedure, health service or research
activity."[^12] While referrals are already included in the Weldon
Amendment and Section 245 of the Public Health Service Act, the Church
Amendment does not currently include referrals in its language. The
preliminary draft of the proposed Regulation did not include counseling
within the definition.

Allowing federally funded individuals to deny women information and
referrals on reproductive health services and other health care options
has the potential to eliminate some women's ability to make informed
health care decisions and to provide informed consent. For instance, if
health care providers refused to provide information and counseling on
the full range of options to pregnant women, including those with fetal
anomalies and victims of rape and incest, those women would not be able
to provide informed consent for related health procedures. Women might
also be denied information about the possibility of using some forms of
contraception to control their reproduction, or prevent other health
problems, and may not be informed of the possibility of using emergency
contraception to prevent unwanted pregnancies.

Additionally, certain types of services, such as end-of-life care, may
now be included based on the new definition of "health service program."
The inclusion of counseling and referrals in the definition of "assist
in performance" would allow health care providers to deny dying patients
the full range of information about their options.

A particularly troubling aspect of the Regulation is its silence
regarding Title VII, the federal law that provides protection to
employees' religious beliefs, while at the same time establishing that
employers need only make "reasonable accommodations" in respecting those
beliefs. [^13] The concerns raised by the provisions expanding the range
of health care workers who may exercise conscientious objection and the
expansive definition of "assisting in the performance," are heightened
by the fact that the interaction of the Regulation with Title VII is not
explicitly addressed. The Regulation should not move forward under these
circumstances.

[The Regulation's Impact on Low-Income Women and Women of
Color]{.underline}

A.  There is a Disproportionate Number of Low-Income Women and Women of
    Color Who Use Public Health Care

A disproportionate number of low-income women and women of color rely on
public health care programs. In the U.S., where access to health care
depends on insurance coverage, lack of health insurance is the primary
barrier to receiving reproductive health care. Overall, the number of
people enrolled in public health insurance programs is decreasing and
private insurance coverage continues to shrink.[^14] Hence, a greater
number of low-income people lack insurance of any kind because they do
not have employer-based coverage and do not qualify for public
insurance. Women of color, who disproportionately work in low-wage jobs
that do not offer benefits,[^15] have lower rates of insurance coverage:
39% of Latinas, 19% of API women, and 18% of African-American women are
without affordable health care compared to only 10% of white women.[^16]

Without affordable health care, these women turn to public programs such
as Medicaid and Title X of the Public Health Service Act (Title X).
Medicaid covers all prenatal and pregnancy-related care for eligible
women. As of 2005, women of reproductive age (15-44) comprised 11.5% of
U.S. women covered by Medicaid,[^17] many of whom are women of color. In
2006, women of color made up 51% of non-elderly Medicaid beneficiaries,
but less than 20% of the general population.[^18] In addition, Title X,
a program that funds reproductive health clinics that provide
contraceptive services and supplies, STI testing and treatment, and
preventative screenings, benefits 6.6 million low-income women, 40% of
whom are women of color.[^19]

B.  Impact of the Regulation on Low-Income Women and Women of Color 

Women of color will be disproportionately affected by the promulgation
of the Regulation because many of them rely heavily on federally funded
health care programs.  As noted, the Regulation creates three
significant problems: that "abortion" may be broadly defined to include
contraception; that a broad range of individuals can refuse to "assist
in the performance" of a health service; and that clinics can withhold
information and deny informed consent. All these problems directly
affect low-income women and women of color.

The Regulation allows a clinic worker to refuse to assist in the
performance of a health service if it is "contrary to his religious
beliefs or moral convictions." Some individuals conflate contraceptive
use with abortion and therefore deem it morally wrong. However, in 2004,
women attending publicly funded clinics avoided an estimated 1.4 million
unintended pregnancies and the decline in unintended pregnancies over
the years is largely attributed to the availability of
contraceptives.[^20] If the Regulation is approved, clinics may refuse
to distribute some contraceptives to patients, a large proportion of
whom are low-income women and minority women.

The proposed Regulation also allows a broad range of individuals to
refuse to "assist in the performance" of health services if they find it
contrary to their religious beliefs or moral convictions. As stated
above, this suggests many scenarios that could affect a woman's
reproductive health. For instance, a receptionist may refuse to make an
appointment for an individual seeking contraceptives or a nurse may
refuse to sterilize equipment used in the performance of abortion.
Hence, there is not only a danger that many low-income women and women
of color who go to public health clinics to seek contraceptives or
reproductive health options may be turned away, but also the creation of
potential health hazards to the patients.

In addition, the proposed Regulation allows clinics to withhold
information and deny informed consent, which directly contradicts the
requirement to provide information and counseling on prenatal care and
pregnancy termination set forth in Title X.[^21] Under the Regulation,
health care centers and institutions could not only refuse to give
information about abortion or contraceptives, but also refuse to refer
their patients to someone who will answer those questions.

The impact of the Regulation may fall most heavily on low-income women
seeking abortions in federally funded health care settings. More than
one in three American women will seek an abortion within her
lifetime.[^22] When low-income women, non-English speakers, rural women,
and women who depend upon public transportation seek abortion services,
they often face significant obstacles associated with missed work, child
care, and other logistics, such as transportation. If these women are
then turned away from health care providers, they may not have the
resources to locate another provider and make their arrangements a
second time.

The proposed expansion of current law could also affect low-income
women's ability to access health care services outside of reproductive
health. Many low-income women already experience discrimination in the
health care system based on their inclusion in a specific class of
persons, such as those with HIV/AIDS, those of a certain race or
ethnicity, or based on immigration status. By expanding the types of
workers covered and types of services that can be denied under federal
refusal laws, discrimination against persons in those vulnerable groups
could increase.

Moreover, because the Department has not provided a definition of "moral
convictions," the proposed Regulation could create avenues for providers
and entities to refuse services or information because of
discrimination, self-interest, or distaste for certain procedures. This
creates a unique problem for low-income women and women of color. They
may be easily discriminated against due to their socioeconomic status,
gender, or race under the guise that the action to be taken is contrary
to the providers' "moral convictions." For example, a same-sex couple
could be denied infertility services.[^23]

Thus, the proposed Regulation creates a myriad of ways for health care
institutions and individuals to refuse to provide health services and/or
information or referrals. It is clear that these issues will directly
affect low-income women and women of color because many of them rely on
public health programs for these services.

[The Regulation Does Not Meaningfully Address Important Issues of
Diversity in the Workplace]{.underline}

The Regulation discusses "an environment in the health care field that
is intolerant of individual conscience" as a factor that may discourage
diversity in the health care workforce, claiming that people of various
religious, ethnic and cultural groups might be excluded without this
regulation in place. This claim is misguided in several ways.

First, the implication that religious, ethnic and cultural minorities
feel a specific way regarding reproductive health services is a
simplistic and inaccurate generalization. Communities of color have been
and continue to be instrumental in the fight for access to reproductive
health care, and to imply that these communities are opposed to basic
reproductive health procedures on a larger scale than other communities
is an unfounded assumption.

Second, the notion that making it easier to refuse to provide services
will diversify the health care workforce is questionable at best.
Diversifying the health care workforce is a commendable objective, and
one that is sorely needed; even though 13% of the United States
population identifies as Latino/a and 12% identify as Black,[^24] only
6.4% and 6.5% of medical school graduates in 2004 were Latino/a or
Black, respectively,[^25] and only 2.8% and 3.3% of physicians
practicing in 2004 were Latino/a or Black, respectively.[^26]
Diversifying the health care workforce would mean establishing a
pipeline of minority physicians, researchers, and other health care
professionals through the elimination of obstacles that communities of
color face in educational attainment. Some ways these obstacles can be
addressed include the creation of federal and state funded scholarships,
loan forgiveness, mentoring programs for young people of color, tuition
assistance, increased financial aid and affirmative action; it is steps
like these that truly begin to eliminate the barriers to a diverse
health care workforce.

Another area of concern is that the Regulation takes no account of
diversity among patients. The proposed regulation is written broadly
enough so that health care workers may not only refuse to participate in
particular procedures, but so that providers may refuse to treat
particular groups of people. This kind of 'moral' refusal is not unheard
of. Lupita Benitez was refused artificial insemination by two physicians
in her provider network because she is a lesbian, and had to incur the
monetary costs of an out-of-network provider -- to say nothing of the
emotional burden incurred due to this kind of discrimination -- to
receive the insemination during the critically short fertility time
window.[^27] The Regulation seems to condone and encourage this kind of
discrimination, the brunt of which will be felt by visible minorities
and marginalized populations, such as LGBT people, undocumented people,
immigrants, and people living with HIV/AIDS. Whether these actions are
actually within the realm of the law will be of little relevance to the
countless patients whose health will suffer due to the refusal of
treatment that this Regulation seems to advocate.

[The Regulation Creates a Culture of Refusal]{.underline}

In addition to the specific concerns detailed above, the proposed
Regulation would also further exacerbate the imbalance between the
rights of conscience and women's rights to reproductive health care. The
Regulation is intended to expand a network of federal and state
conscientious refusal laws that have created a "culture of refusal," in
which women's reproductive health care needs and rights are accepted as
being secondary to the conscience of providers. These laws often ignore
health care providers' responsibilities and ethical duties to provide
care to patients in a way that is respectful of patient autonomy,
timely, effective, evidence-based and non-discriminatory.[^28] Instead,
together with numerous other federal and state laws, they are
politically motivated attempts to prevent women from accessing abortion
and family planning services that use conscience as a smokescreen for
their goals.

Refusal laws exist in significant numbers at the federal and state
levels. As noted, the Church Amendment,[^29] the Weldon Amendment, [^30]
and the Public Health Service Act Sec. 245,[^31] as currently
implemented, already provide strong protection for individual health
care providers and institutions to exercise their religious or moral
beliefs regarding reproductive rights. These laws, along with Title
VII,[^32] already allow individuals, health care entities, and research
programs that receive federal funding to refuse to participate in or
provide training for abortions, sterilizations, and in some cases any
activity that is contrary to their moral convictions or religions
beliefs.

Additionally, nearly every state has a policy explicitly allowing some
health care professionals or certain institutions to refuse to provide
or participate in abortion, contraceptive services or sterilization
services. Forty-six states allow some individual health care providers
to refuse to provide abortion services, and forty-three of those states
allow health care institutions to refuse to provide abortion
services.[^33] Thirteen states allow some individual health care
providers to refuse to provide services related to contraception and
nine of those states allow health care institutions to refuse to provide
services related to contraception.[^34] Seventeen states allow some
health care providers to refuse to provide sterilization services and
fifteen of those states allow health care institutions to refuse to
provide sterilization services.[^35] Even in states without explicit
refusal statutes, an individual health care professional's actions may
be legally protected by statutes prohibiting discrimination against
employees, based on their religious objections.[^36]

Expanding the culture of refusal, as the Regulation seeks to do, would
have a particularly severe impact on women of limited means, who are
disproportionately women of color in this country. These women already
face significant barriers in accessing health care overall, even without
the added difficulties created when providers in under-resourced
communities refuse care to women. The United States Office of Women's
Health found "\[s\]everal...factors limit the access of minority women
to the U.S. health care system. They include social disadvantages,
cultural values, discrimination, lack of culturally appropriate
services, inadequate childcare, and transportation..."[^37]
Additionally, a study by the Kaiser Family Foundation found that
low-income women faced twice as much difficulty as other women in
obtaining the flexible work schedules, transportation, and child care
necessary to access health care services for themselves.[^38]

The existing barriers that women face in accessing health care become
especially burdensome when coupled with refusal clauses as sweeping as
those in the Regulation. As the American College of Obstetricians and
Gynecologists recently recognized, when low-income women and minority
women are refused services, turned away, or given incomplete information
about their reproductive health care options, they often do not have the
opportunity to access other health care providers. "For instance, a
refusal to dispense contraception may place a disproportionate burden on
disenfranchised women in resource-poor areas. Whereas a single, affluent
professional might experience such a refusal as inconvenient and seek
out another physician, a young mother of three depending public
transportation might find such a refusal to be an insurmountable barrier
to medication because other options are not realistically available to
her."[^39]

If the Regulation were to go into effect, the United States would also
be increasingly out of step with international human rights standards
and norms. International standards require that there must be a balance
between health and conscience and require a recognition that health is
of primary importance.[^40] So, while practitioners have a right to
respect for their conscientious convictions regarding lawful procedures
and should not suffer from discrimination on the basis of their
convictions, refusal clauses must reflect prevailing standards of
medical ethics that make patient's health care of primary consideration.
Refusal clauses cannot be overbroad: only those providers participating
in the procedure may object, not those providing care before or after,
or those performing administrative services.[^41] Providers must
promptly tell patients that they refuse to provide certain health
services and patients are entitled to be referred immediately, in good
faith, for procedures that providers object to undertaking.[^42] Despite
growing international consensus on these standards, none of these
protections for patient care are included in the Regulation.

[The Cost-Benefit Analysis Purporting to Support the Regulation is
Wholly Inadequate.]{.underline}

The cost-benefit analysis conducted by the Department was poorly
performed and therefore provides no reliable information on the
Regulation's actual impact. As described in greater detail in the
attached analysis prepared by the Institute for the Study of Regulation
at the New York University School of Law ("ISR Analysis"):

> The Department has engaged in an incomplete, cursory, and inadequate
> cost-benefit analysis in support of the proposed rule. First, the rule
> fails to prove the existence of the problem it is designed to solve.
> Second, the analysis fails to quantify benefits of the regulation.
> Finally, the analysis fails to identify and account for serious costs
> arising from, *inter alia*, potential failures to inform women of
> their health choices and a decreased availability of medical
> procedures and/or contraception. The analysis performed by the
> Department falls below a reasonable standard of an appropriate
> cost-benefit analysis as required by EO 12,866. Accordingly, this
> flawed cost-benefit analysis cannot be used to justify the
> promulgation of the proposed rule. Under EO 12,866, the Department is
> obligated to undertake a more formal accounting of the impacts of the
> proposed regulation in economic terms.

Of particular concern is the Department's failure to adequately address
the costs associated with the Regulation, and in particular its impact
on subgroups including low-income women and women of color. As the ISR
Analysis points out, the Department is required "to assess how the costs
and benefits are distributed among subpopulations." In spite of this
mandate, the cost benefit analysis makes no attempt to assess the impact
on these vulnerable groups.

Given the gravity of the interests at stake -- access to health care by
low-income women and women of color who already disproportionately
experience poorer reproductive health -- the failure of the Department
to meet its obligation to undertake a well-conducted and balanced
cost-benefit analysis is reason enough to reject the Regulation.

[Conclusion]{.underline}

Women seeking reproductive health care services already face tremendous
obstacles. The Regulation will exacerbate those problems, while
accomplishing nothing but accepting unexamined claims that medical
providers and support staff are being treated discriminatorily. For all
of these reasons, we urge you to drop this dangerous and misguided
proposal. Should the Department decide to move the Regulation forward,
in spite of its harmful impact on low-income women, women of color, and
other vulnerable groups, we implore you to modify the Regulation to
ameliorate the harmful effects we have identified in these comments.

Sincerely,

National Latina Institute for Reproductive Health

National Asian Pacific American Women's Forum

Center for Reproductive Rights

Atlanta Pro Choice Action Committee

Boalt Hall Committee for Human Rights

California Black Women\'s Health Project

Cedar River Clinics - Renton, Tacoma, Yakima in Washington State

Center for Women Policy Studies

Center for American Progress Action Fund

Civil Liberties and Public Policy Program at Hampshire College

Choice USA

Colorado Organization for Latina Opportunity and Reproductive Rights
(COLOR)

DC Abortion Fund

Florida Legal Services

Human Rights Watch

IBIS Reproductive Health

IPAS, USA

Law Students for Reproductive Justice

Boston University Law Students for Reproductive Justice

Law Students for Reproductive Justice at University of California,
Berkeley

Cardozo Law Students for Reproductive Justice

George Washington University Law Students for Reproductive Justice

Law Students for Reproductive Justice at Hamline University School of
Law

Harvard Law Students for Reproductive Justice

Law Students for Reproductive Justice at Indiana University School of
Law - Bloomington

University of Iowa Law Students for Reproductive Justice

University of Minnesota Law School Law Students for Reproductive Justice

University of Maryland Law Students for Reproductive Justice

Rutgers - Newark Law Students for Reproductive Justice

Seattle University Law Students for Reproductive Justice

Law Students for Reproductive Justice at William Mitchell College of Law

Mary Wohlford Foundation

NARAL Pro-Choice - Maryland

National Advocates for Pregnant Women

National Council of Jewish Women

National Health Law Program

National Institute for Reproductive Health

National Network of Abortion Funds

National Women's Health Network

National Women's Law Center

New Voices Pittsburgh Women of Color for Reproductive Justice, Birth
Circle

Phoenix Take Back the Night

Political Research Associates

Pro-Choice Public Education Project

Reproductive Health Access Project

Reproductive Health Technologies Project

SisterSong

Sisters of Color United for Education/Hermanas de Color Unidas para la
Educación

Texas Equal Access Fund

The Women\'s Health and Education Fund

Third Wave Foundation

Washington State National Organization for Women

WV FREE (West Virginia Focus: Reproductive Education and Equality)

[^1]: 42 U.S.C. §300a-7 (2008).

[^2]: Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div.
    G, §508(d), 121 Stat. 1844, 2209 (Dec. 26, 2007)

[^3]: 42 U.S.C. §238(n) (2008).

[^4]: The definition proposed in the preliminary draft was contrary to
    definitions accepted by both the American Medical Association and
    the American College of Obstetricians and Gynecologists. *See*,
    Department of Health and Human Services Proposed Rule at 30; Rachel
    Benson Gold, Guttmacher Inst., *The Implications of Defining When a
    Women Is Pregnant*, 8 [G]{.smallcaps}uttmacher Rep[.]{.smallcaps} on
    Pub. Pol'y 7-10, 7-8 (May 2005), *available at*
    http://www.guttmacher.org/pubs/tgr/08/2/gr080207.pdf (*citing*
    American College of Obstetricians and Gynecologists).

[^5]: "Assist in the Performance" is defined as "to participate in any
    activity with a reasonable connection to a procedure, health service
    or health service program, or research activity, so long as the
    individual involved is a part of the workforce of a
    Department-funded entity. This includes counseling, referral,
    training, and other arrangements for the procedure, health service,
    or research activity." Ensuring that Department of Health and Human
    Services Funds Do Not Support Coercive or Discriminatory Policies or
    Practices In Violation of Federal Law, 73 Fed. Reg. 50274, 50282
    (August 26, 2008), (to be codified at 45 C.F.R. pt. 88).

[^6]: "Individual" is defined as *"*a member of the workforce of an
    entity / health care entity." 73 Fed. Reg. 50274, 50282 (August 26,
    2008), (to be codified at 45 C.F.R. pt. 88).

[^7]: "Workforce," "includes employees, volunteers, trainees, and other
    persons whose conduct, in the performance of work for a
    Department-funded entity, is under the control or authority of such
    entity, whether or not they are paid by the Department-funded
    entity." 73 Fed. Reg. 50274, 50282-50283 (August 26, 2008), (to be
    codified at 45 C.F.R. pt. 88).

[^8]: "Health Service / Health Service Program," "includes any plan or
    program that provides health benefits, whether directly, through
    insurance, or otherwise, which is funded, in whole or in part, by
    the Department. It may also include components of State or local
    governments." 73 Fed. Reg. 50274, 50282 (August 26, 2008), (to be
    codified at 45 C.F.R. pt. 88).

[^9]: Ensuring that Department of Health and Human Services Funds Do Not
    Support Coercive or Discriminatory Policies or Practices In
    Violation of Federal Law, 73 Fed. Reg. 50274, 50277 (August 26,
    2008), (to be codified at 45 C.F.R. pt. 88).

[^10]: Id. at 50278.

[^11]: Id. at 50277.

[^12]: Ensuring that Department of Health and Human Services Funds Do
    Not Support Coercive or Discriminatory Policies or Practices In
    Violation of Federal Law, 73 Fed. Reg. 50274, 50282 (August 26,
    2008), (to be codified at 45 C.F.R. pt. 88).

[^13]: 42 U.S.C § 2000e-1(a) (2008).

[^14]: U.S. Census Bureau, *Income, Poverty, and Health Insurance
    Coverage in the United States: 2006* 18-19

    (Aug. 2007), *available at*
    <http://www.census.gov/prod/2007pubs/p60-233.pdf>, (showing a
    decrease from 27.3 million people covered in 2005 to 27.0 covered in
    2006).

[^15]: Kaiser Family Found., *Racial and Ethnic Disparities in Women's
    Health Coverage and Access to Care:*

    *Findings from the 2001 Kaiser Women's Health Survey* 2 (Mar. 2004),
    *available at*
    http://www.kff.org/womenshealth/upload/Racial-and-Ethnic-Disparities-in-Women-s-Health-Coverage-and-Access-to-Care.pdf.
    White women (70%) are more likely to have employer provided health
    coverage than African American women (59%) or Latinas (39%). Nat'l
    Inst. of Health, *Women of Color Health Data Book: Adolescents to
    Seniors* 107 (2006), *available at*
    http://orwh.od.nih.gov/pubs/WomenofColor2006.pdf \[hereinafter NIH

    Women of Color Health Data Book\].

[^16]: NIH Women of Color Health Data Book, *supra* note 36, at 107;
    Kaiser Family Found., *Women's Health Policy Fact Sheet: Women's
    Health Insurance Coverage* 2 (Dec. 2007), *available at*
    http://www.kff.org/womenshealth/upload/6000_06.pdf.

[^17]: Kaiser Family Found., and Guttmacher Instit., *Issue Brief: A
    Critical Source of Support for Family Planning in the United States*
    1 (April 2005), *available at
    <http://www.kff.org/womenshealth/upload/Medicaid-A-Critical-Source-of-Support-for-Family-Planning-in-the-United-States-Issue-Brief-UPDATE.pdf>.*.

[^18]: Kaiser Family Found., *Issue Brief:* *Medicaid's Role for Women*
    1 (May 2006) *available at*
    http://www.kff.org/womenshealth/upload/Medicaid-s-Role-for-Women-May-2006.pdf.

[^19]: Guttmacher Inst., *Title X and the U.S. Family Planning Effort* 3
    (1997), *available at*

    <http://www.guttmacher.org/pubs/ib16.html>.

[^20]: Heather D. Boonstra, Guttmacher Inst., *The Impact of Government
    Programs on Reproductive Health Disparities: Three Case Studies*, 11
    Guttmacher Pol'y Rev. 3 at 8, (Summer 2008).

[^21]: 42 C.F.R. § 59.5 (2008).

[^22]: Heather D. Boonstra et al., Guttmacher Inst., *Abortion in
    Women's Lives* 6 (2006), *available at*
    http://www.guttmacher.org/pubs/2006/05/04/AiWL.pdf.

[^23]: American College of Obstetricians and Gynecologists, *The Limits
    of Conscientious Refusal in Reproductive Medicine*, Committee
    Opinion Number 385, at 4 (Nov. 2007).

[^24]: U.S. Department of Commerce, Economics and Statistics
    Administration, U.S. Census Bureau, *Census 2000 Brief,* *Overview
    of Race and Hispanic Origin* 3 (March 2001) *available at*
    http://www.census.gov/prod/2001pubs/c2kbr01-1.pdf

[^25]: Association of American Medical Colleges, *Minorities in Medical
    Education: Facts and Figures 2005* at 27 (Spring 2005).

[^26]: Association of American Medical Colleges, *Diversity in the
    Physician Workforce: Facts and Figures 2006*, at 15 (Summer 2006).

[^27]: Lambda Legal, *Benitez v. North Coast Women's Care Medical Group
    Questions and Answers (*June 22, 2005), *available at*
    http://www.lambdalegal.org/our-work/publications/facts-backgrounds/page.jsp?itemID=31987395.

[^28]: Id. at 3.

[^29]: 42 U.S.C.A. §300a-7 (2008).

[^30]: Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div.
    G, §508(d), 121 Stat. 1844, 2209 (Dec 26, 2007).

[^31]: 42 U.S.C.A. §238(n) (2008).

[^32]: 42 U.S.C § 2000e-1(a) (2008).

[^33]: Guttmacher Inst., *State Policies in Brief, Refusing to Provide
    Health Services Factsheet* (Sept. 1, 2008), *available at*
    http://www.guttmacher.org/statecenter/spibs/spib_RPHS.pdf.

[^34]: Id.

[^35]: Id.

[^36]: Id.

[^37]: U.S. Dept. of Health & Human Services, Office on Women's Health,
    *The Health of Minority Women* 4 (July 2003), *available at*
    <http://www.4woman.gov/owh/pub/minority/minority.pdf>.

[^38]: Kaiser Family Found., *Women and Health Care: A National Profile*
    24 (July 2005), *available at*
    http://www.kff.org/womenshealth/upload/Women-and-Health-Care-A-National-Profile-Key-Findings-from-the-Kaiser-Women-s-Health-Survey.pdf.

[^39]: American College of Obstetricians and Gynecologists, *The Limits
    of Conscientious Refusal in Reproductive Medicine*, Committee
    Opinion Number 385, at 4 (Nov. 2007).

[^40]: International Covenant on Civil and Political Rights, Art. 18,
    *opened for signature* December 19, 1966, 999 U.N.T.S. 85 (entered
    into force March 23, 1976).

[^41]: *See, e.g., Janaway v. Salford Health Authority*, 2 All E.R. 1079
    (H.L. 1988)(conscience objection clause in UK abortion law only
    applies to participation in treatment); Regulations for the
    Implementation of the Act dated June 13 1995 no. 50 concerning
    Termination of Pregnancy, with Amendments in the Act dated 16 June
    1978 no. 66 cf. § 12 of the Act, laid down by Royal Decree, 1
    December 1978, § 20 (Nor.)(Regulations implementing Norway's
    abortion law expressly provide that the right to refuse to assist in
    an abortion belongs only to the personnel who perform or assist the
    actual procedure).

[^42]: *See, e.g.*, Code de law Sante Publique, arts. L22212-8 and
    R4127-18 (Fr.) (2001)(France's Public Health code places a legal
    obligation on providers to immediately communicate their refusal to
    perform an abortion).