HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, July 23, 2008

A Government Threat to Birth Control

US News reports that Sen. Hillary Clinton and other advocates of women's rights say a planned regulation could cut access to contraception.  Deborah Katz writes,

Birth_control A new set of health laws that could be proposed by the government sometime in the next few weeks has women's health activists steaming. If the laws are implemented, they claim, women will have a harder time getting access to contraception.

The legislation, a draft of which was leaked last week to the New York Times, stokes the debate over when human life begins by taking the position that birth control that prevents the implantation of a fertilized egg actually results in abortion. It would prohibit federally funded medical facilities—including teaching hospitals and Planned Parenthood clinics—from refusing to hire doctors who don't want to dispense birth control pills and other types of contraception that may cause the expulsion of a fertilized egg. (It's already illegal to discriminate against doctors who refuse to perform abortions.) The new laws would also override state laws that require hospitals to offer emergency contraception to rape victims and those that require employers to provide contraceptives along with other prescriptions.

Late last week, Sen. Hillary Clinton called the planned rules (which could be imposed without congressional approval) "damaging" and a "dire threat to women" and warned that contraceptive coverage would "disappear overnight" if enacted. Dozens of organizations, including the American College of Obstetricians and Gynecologists and Planned Parenthood, have also voiced their objection, especially to the government's definition of the onset of pregnancy.

According to ACOG, "conception is the implantation of the fertilized ovum," based on the ability to clinically detect pregnancy through elevated hormone levels. Hormonal contraceptives—especially those that contain only progesterone like the minipill and the Mirena intrauterine device—don't always suppress ovulation, so sometimes a fertilized egg is expelled before it's implanted in the uterus. Refusing to comment specifically on the draft proposal, the Department of Health and Human Services yesterday issued a statement saying it is "exploring a number of options" to enforce the antidiscrimination laws put in place by Congress.

Those supporting the new regulations believe in a stricter definition of conception: Life starts at fertilization. Contraception that acts as an abortifacient is "clearly the destruction of a human being at [its] earliest stages of development," says Deirdre McQuade, assistant director of policy and communications at the U.S. Conference of Catholic Bishops' Pro-Life Secretariat. She adds that doctors should be "allowed to practice medicine according to their values." Republican Rep. Dave Weldon of Florida, a physician who helped pass congressional laws protecting doctors who oppose abortion, says extra enforcement is needed to protect the rights of healthcare workers. "Just this weekend a nurse told me that she has resigned from two jobs at two different hospitals because she refused to sign a form promising to provide abortion services," he wrote in a prepared statement released yesterday.

Yet in protecting the rights of medical practitioners, some worry, the law would trample on the rights of the patient. "It would mean that if a woman walked into a facility and her doctor didn't believe in birth control, she wouldn't get it and wouldn't even know that she's not being offered this option," says Cecile Richards, president of Planned Parenthood Federation of America. Treatment, she says, would be "the luck of the draw."

Just as troubling, experts say, is that the new rules would nullify state laws protecting women's access to reproductive health services, according to an assessment performed by the National Family and Reproductive Health Association. For example, 27 states currently require that insurers treat contraception like other prescriptions, while 16 states require hospital ER's to provide emergency contraception for rape victims. More than a dozen states require pharmacies to stock birth control pills and "plan B" emergency contraception, a response to the growing trend of "pro-life" pharmacies to refuse to stock any form of birth control.

At the core of the debate is this question: Does a doctor's right to follow his or her conscience trump a patient's right to a full range of medical treatment? In a position paper released last November, ACOG said gynecologists must provide "accurate and unbiased information" so that patients can make informed decisions, and "have the duty to refer patients in a timely manner to other providers" if they don't feel comfortable performing an abortion, say, or prescribing contraception. HHS Secretary Michael Leavitt, however, said ACOG overstepped its bounds by "forcing providers to choose between their personal beliefs and facing economic and professional sanctions."

In the real world, the vast majority of doctors who object to a particular practice feel an obligation to present all the options and refer patients to other physicians, according to a survey of 1,144 doctors published last year in the New England Journal of Medicine. On the other hand, a full 14 percent of doctors surveyed didn't think they needed to fully inform patients and nearly 30 percent didn't think they had to make referrals. "For many doctors, referring for a practice that one would not be willing to do oneself is still participating in that same practice," explains McQuade. At the very least, critics argue, shouldn't doctors be obligated to inform patients of their ethical objections rather than just keep mum about a woman's alternatives? "No one's advocating on keeping these views hidden," says McQuade. This sort of requirement, however, isn't included in the draft regulation.

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