HHS Secretary Mike Leavitt Issues Blog Post on Proposed Regulation

By Rachel Walden — August 8, 2008

HHS Secretary Mike Leavitt has been blogging since November of last year but rarely addresses the controversial issues in which he is involved, focusing instead on accounts of his travels around the globe. This changed yesterday, when he published a post entitled “Physician Conscience” responding to criticisms that a proposed HHS rule could allow providers to define contraception as abortion. The rule is being framed as a physician conscience issue, in that healthcare providers and institutions receiving federal HHS funds could not discriminate against those unwilling to provide abortion services – under the current draft, many fear that this could include contraceptives under the definition of abortion.

Leavitt sidesteps this issue in his post, claiming that the rule is not intended to deal with contraceptives:

“An early draft of the regulations found its way into public circulation before it had reached my review. It contained words that lead some to conclude my intent is to deal with the subject of contraceptives, somehow defining them as abortion. Not true.

“The Bush Administration has consistently supported the unborn. However, the issue I asked to be addressed in this regulation is not abortion or contraceptives, but the legal right medical practitioners have to practice according to their conscience and patients should be able to choose a doctor who has beliefs like his or hers.”

He does not explicitly state, however, that he would exclude from the “legal right medical practitioners have to practice according to their conscience” the oral contraceptives and other items that critics have suggested might be affected. Regardless of intent, the regulation certainly could functionally allow the defining of contraceptives as abortion. Leavitt does not say that this language will be removed or clarified, but says only that if the regulation is issued, it will “be directly focused on the protection of practitioner conscience.”

This is not Leavitt’s first foray into physician conscience issues, nor the first time he has come down on the side of denying patient care in favor of provider ideology. In March of this year, Leavitt issued a letter to the American College of Obstetricians and Gynecologists protesting the organization’s own statement on physician conscience, and asking that the statement not be used to withdraw board certifications from physicians who object to providing abortion or other care. Anti-choice organizations had been protesting the statement for months, demanding that ACOG “repudiate and withdraw” their conscience statement. It is not clear if the uproar from anti-choice organizations such as the Family Research Council is responsible for the topic coming to Leavitt’s attention.

In the current blog post, he frames the newly proposed regulations by referring to this incident:

“Several months ago, I became aware that certain medical specialty certification groups were adopting requirements which potentially violate a physician’s right to choose whether he or she performs abortion. I wrote to the organizations in question, protesting their actions. Frankly, I found their response to be dodgy and unsatisfying. I sent another letter, more of the same.”

In fact, ACOG is not responsible for board certifications, and the actual certifying body responded that Leavitt “took two and two and came up with five.” They also affirmed that the statement could not compel any physician to provide services to which she or he objected. In other words, certification was never in danger if physicians refused to perform abortions.

I note that while Leavitt is concerned that “patients should be able to choose a doctor who has beliefs like his or hers,” he does not address the issue of patients actually being able to receive care from doctors. The ACOG statement to which he initially reacted is much more balanced, including the duty of physicians to provide scientifically accurate information, refer patients to other providers in a timely manner, and consider the effects in resource-poor areas, such as whether there are other providers able to fulfill the patients needs and requests. It only specifically demands provision of medical care in emergencies and when delays in such care would clearly negatively impact the health of the patient.

A central trouble with Leavitt’s explanation is that it is already possible for providers to refuse to perform abortions, but the regulation as written would considerably broaden the possible definitions of abortion, even so far as referring to public opinion surveys against leading medical opinion in supporting a definition that includes pre-implantation fertilized eggs. As Scott Swenson at RHRealityCheck explains regarding the proposed rule, that “Very quickly, the original intent of Sec. Leavitt becomes everyone’s right to withhold services because the person seeking it doesn’t believe exactly the same things as the person providing it.”

Additionally, many, many people have interpreted the draft to be a threat to healthcare provision, such as of contraceptives, and have acted to object. Numerous organizations have written to Leavitt to oppose the draft, including ACOG, the American Medical Association, the American College of Nurse Midwives, the American Academy of Pediatrics, and the American Academy of Family Physicians. ACOG called the draft “an affront to health professionals and to American women.” Clearly, quite a few educated people in healthcare clearly thought the draft was in fact problematic and could have the effects that Leavitt merely claims he didn’t “intend.”

Previous related posts:

See also RHRealityCheck’s thorough coverage. Kudos to Scott at RHRealityCheck for asking Leavitt about this issue in person at an event at which the Secretary spoke about blogging. In a brief exchange over Skype, I told Scott good for him for asking the question, and observed that Leavitt never addresses concrete, controversial issues on his blog. Scott, I’m glad I was wrong in this case, and good for you! 🙂

Cross-posted at Women’s Health News

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