RIGHT TO CONSCIENCE? Unconscionable is more like it.
Just 33 days from extinction, the Bush administration is threatening to erect a huge bureaucratic barrier to health care - a barrier the incoming Obama administration will find difficult to remove.
On Monday, the White House approved so-called "provider conscience regulations."
As written, the regulations would let health-care workers - from doctors to technicians to receptionists - refuse to provide health-care services, referrals or information to which they have moral objections. That could include abortion, of course, but also birth control, sterilization, even fertility treatments. It could also include HIV treatment or testing, mental-health services or biomedical research - the protections are that broad and vague.
The U.S. Department of Health and Human Services has until tomorrow to lock them in place before Inauguration Day.
Several federal and state laws - including one in Pennsylvania - already protect the "right to conscience" of doctors and nurses not to perform abortions. But federal laws also protects the rights of patients to legal health care.
The proposed HHS regulations choose the former over the latter, and also remove protections for the 584,294 federally funded medical entities - hospitals, doctors' offices and pharmacies - that might find it an "undue burden" to pay employees who refuse to do the work for which they were hired.
Even though HHS tried to rush through the regulations and shortened the public-comment process to 30 days last summer, more than 200,000 objections were registered, from individuals, the American Medical Association, state officials (including from Pennsylvania) and even three members of the U.S. Equal Employment Opportunity Commission.
A lawyer for the EEOC, one appointed by Bush, said the regulations threatened to undo 44 years of employment law decided under Title VII of the Civil Rights Act of 1964, which balances the rights of employers with the religious rights of employees. He also warned that the new rules would enshrine religious preferences into the law - and the First Amendment says you can't do that, even if you put "conscience" in the title.
We won't know the exact content of these "midnight regulations" unless or until HHS dumps them into law this week, but we do know that complying with them will cost about $44 million a year, since all the "medical entities" will have to certify that they are in compliance. That doesn't include the cost in pain and confusion, and maybe litigation, that would come with allowing health-care workers to decide who is worthy of receiving what care.
Obviously, the Bush administration doesn't care about the objections of doctors or hospitals or patients - but what about the appoximately 70 million Americans who voted Nov. 4 to let Barack Obama lead the nation? Apparently, they don't matter, either.
In order to undo these regulations, the new Congress could resort to something called the Congressional Review Act, which has been used only once. Or the new HHS secretary, Tom Daschle, could restart the rule-making process, which will take months. The Obama team has signaled that it is ready to go this route, with the inevitable political divisiveness - and who knows how many individuals who won't get the health care or information they need?