Washington Blade - December 26, 2008
Chris Johnson

Issued Dec. 18, the rule allows the federal government to withhold funds from health care facilities if they do not permit workers to opt out of performing medical procedures they find objectionable based on religious or moral grounds.

The 127-page regulation, which is estimated to cost $44 million to implement, is primarily aimed at allowing health workers to opt out of performing abortions, but Lara Schwartz, legal director for the Human Rights Campaign, said the rule could enable health care providers to decline to provide services for gay people - even for treatment of a common cold.

"It's not clear that that is the intent," she said, "but it absolutely does not preclude that result, which is one of the reasons that HRC submitted comments asking them to draft it differently."

Schwartz said refusing to provide artificial-insemination services for a lesbian couple would be one possible procedure that medical workers could refuse to participate in based on the regulation.

In a Dec. 19 statement, HRC said a health care worker might be able to refuse to administer an HIV test to gay patients and even be exempt from telling them where else they could receive the test.

Additionally, pharmacists could refuse to fill a prescription for hormone therapy if they have objections to transgender people, HRC says.

Health & Human Services Secretary Mike Leavitt, in a statement Dec. 18, said the rule "protects the right of medical providers to care for their patients in accord with their conscience."

"Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience," he said.

Kevin Schweers, a spokesperson for the Department of Health & Human Services, said the new regulation does not change existing civil rights laws in any way and said "it would be impermissible to decline to provide or participate in a service if the decision is based on an individual's characteristics that are federally protected."

There are no protections for sexual orientation under federal law, but HIV-positive people enjoy protections under the Americans with Disabilities Act.

Schweers said under the new regulation, an HIV/AIDS clinic funded through the Ryan White Care Act must still "serve its target population."

The Department of Health & Human Services will review any complaints alleging discrimination under the new regulation on case-by-case basis, Schweers said.

The regulation goes into effect around the time President-elect Barack Obama takes office on Jan. 20. Cristina Finch, senior legal counsel for HRC, said Obama could issue another rule to rescind President Bush's upon taking office, but undoing the regulation could take several months.

Congress also could take action on the regulation, but there is no indication from lawmakers or from the Obama administration on how they plan on reacting to the rule, Finch said. The Obama transition team did not respond to a request for comment on how it would respond to Bush's regulation.

Last month, Sens. Hillary Clinton (D-N.Y.) and Patty Murray (D-Wash.) introduced legislation to repeal the rule, but the bill will die when the congressional session ends this year.

U.S. Rep. Tammy Baldwin (D-Wisc.), the only out lesbian in Congress, condemned the regulations in a Dec. 18 statement and said she is "deeply troubled by the Bush administration's latest attack on patients' rights and the doctor-patient relationship."

"Medical care must be based on science and the patients' best interest, not the providers' religious, political or other philosophical views," she said.

HRC President Joe Solmonese said in the Dec. 19 statement that the regulations "sacrifice patients' right to medical care, permitting providers to refuse to do their jobs when they choose."

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