Leavitt Misrepresents to Justify Proposed Regulation

The American Board of Obstetricians and Gynecologists has clearly stated that certification is not at issue if a provider refuses to perform or refer for abortion. But HHS Secretary Mike Leavitt continues to cite this certification as justification for his new regulations.

HHS Secretary Mike Leavitt has issued a third blog post on physician conscience,
announcing the release of the official proposed regulation following
the draft which has generated so much controversy. I continue to be
amazed and appalled by Leavitt’s reliance on the certification argument
as justification for the measure.

Leavitt continues to either
misunderstand or deliberately misrepresent the certification issue as a
primary argument for the introduction of the proposed regulations. He writes:

This became a topical matter when the American
College of Obstetricians and Gynecologists (ACOG) issued guidelines
that could shape board certification requirements and necessitate a
doctor to perform abortions to be considered competent.

Physician certification is a powerful instrument. Without it, a
doctor cannot practice the specialty. Putting doctors (or any one who
assists them) in a position where they are forced to violate their
consciences in order to meet a standard of competence violates more
than federal law. It violates decency and the core value of personal
liberty. Freedom of expression and action are unfit barter for
admission to medical employment or training.

As Secretary of Health and Human Services, I called on the
organization that oversees Ob-Gyn board certification to alter its
guidelines to assert that refusal to violate conscience will not be
used to block board certification. Their answer was dodgy and

The American Board of Obstetrics and Gynecology (ABOG) is
the certifying organization for ob/gyns, and has clearly stated since
at least March of this year that refusal to perform or refer for
abortion would have no bearing on issuance or renewal of provider
certification. As this NPR piece documents,

Norman Gant, executive director of the certifying board, says HHS got it all wrong.

"They took two and two and came up with five," he said.

Gant, who didn’t respond sooner because he was out of the office,
backed up what ACOG spokesman Gregory Phillips said Tuesday, which is
that the ethics committee opinion regarding referrals is not a binding
portion of the college’s ethics code, and therefore not a factor in the
decision about board certification.

"We do not restrict access to our exams for anyone applying for
initial certification, or maintenance of certification, based on
whether they do or do not perform an abortion," Gant said. "We do not
base this upon whether they do or do not refer patients to an abortion
provider if they do not choose to do abortions."

Gant has publicly released his organization’s response [PDF] to the issuance of the official regulation,
in which Leavitt again refers to "the potential to force
physicians to either violate their conscience by referring patients for
abortions (or taking other objectionable actions) or risk losing their
board certification." In his response, Gant states that he is:

"both shocked and very dismayed at the grossly untrue and unfair allegation that:

"…action by the American Board of Obstetrics and
Gynecology…had the potential to force physicians to either violate
their conscience by referring patients for abortions (or taking other
objectionalbe actions) or risk losing their board certification."

The "subsequent action" to which you refer is totally unspecified in the Release. Moreover,
your allegation is directly contrary to the advice I provided you in my
letter to you of March 19, 2008, which expressly stated:

"The American Board of Obstetrics and Gynecology has
taken no stand, pro or con, against individual physicians who choose to
or choose not to perform abortions or to refer patients to abortion

Moreover, such an issue is not a consideration in the
application or in the examinations administered by the American Board
of Obstetrics and Gynecology in any of its certification or in its
Maintenance of Certification requirements or examinations.

Gant goes on to challenge Leavitt, essentially, to prove it:

In none of our various communications with you
and your Department have you provided the American Board of Obstetrics
and Gynecology with "even one" instance of the discrimination of which
you have publically accused it in your Press Release, let alone any
supporting documentation.
My careful and comprehensive review
of the ABOG files does not disclose "even one" instance of a physician
who was denied certification or recertification, or whose certification
was revoked, because the ABOG allegedly required that physician, as you
have charged, to violate his or her conscience by referring patients
for abortions.

The ABOG has previously and privately requested you to provide it
with any cases or documentation you have to support your accusations so
that it could know by whom it has been accused and for what offense. By
this letter, which we are releasing to the public and the press, we
again ask that you provide evidence supporting the serious and damaging
charges you have made.

In other words, ABOG has clearly restated that certification
is not at issue if a provider refuses to perform or refer for abortion,
and is challenging Leavitt to provide any evidence that this is a real
justification for the regulation, which he has thus far failed to
provide. Gant goes on to request that formal hearings be held
for receipt of public comment so the the "intent and full implications
of any proposed Regulations governing ‘conscience rights’ may be fully

Gant also notes that it would provide "a public forum in which the
allegations against the ABOG may be refuted, and will offer an
opportunity for a complete consideration of the implications of the
conduct the Regulation would impact, including, but not limited to,
considerations of malpractice liability and the implications on women’s
health care."

This piece was originally posted at Our Bodies Our Blog.