Read the full text of the leaked HHS proposal here (PDF).
In a spectacular act of complicity with the religious right, the
Department of Health and Human Services Monday released a proposal that
allows any federal grant recipient to obstruct a woman’s access to
contraception. In order to do this, the Department is attempting to
redefine many forms of contraception, the birth control 40% of
Americans use, as abortion. Doing so protects extremists under the
Weldon and Church amendments. Those laws prohibit federal grant
recipients from requiring employees to help provide or refer for
abortion services. The "Definitions" section of the HHS proposal states,
Abortion: An abortion is the termination of a pregnancy. There
are two commonly held views on the question of when a pregnancy
begins. Some consider a pregnancy to begin at conception (that is, the
fertilization of the egg by the sperm), while others consider it to
begin with implantation (when the embryo implants in the lining of the
uterus). A 2001 Zogby International American Values poll revealed that
49% of Americans believe that human life begins at conception.
Presumably many who hold this belief think that any action that
destroys human life after conception is the termination of a pregnancy,
and so would be included in their definition of the term "abortion."
Those who believe pregnancy begins at implantation believe the term
"abortion" only includes the destruction of a human being after it has
implanted in the lining of the uterus.
The proposal continues,
Roe has collapsed and Texas is in chaos.
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Both definitions of pregnancy
inform medical practice. Some medical authorities, like the American
Medical Association and the British Medical Association, have defined
the term "established pregnancy" as occurring after implantation. Other
medical authorities present different definitions. Stedman’s Medical
Dictionary, for example, defines pregnancy as "[t]he state of a female
after conception and until the termination of the gestation."
Dorland’s Medical Dictionary defines pregnancy, in relevant part, as
"the condition of having a developing embryo or fetus in the body,
after union of an oocyte and spermatozoon.
Up until now, the federal government followed the definition of
pregnancy accepted by the American Medical Association and our nation’s
pregnancy experts, the American College of Obstetricians and
Gynecologists, which is: pregnancy begins at implantation. With this
proposal, however, HHS is dismissing medical experts and opting instead
to accept a definition of pregnancy based on polling data. It now
claims that pregnancy begins at some biologically unknowable moment
(there’s no test to determine if a woman’s egg has been fertilized).
Under these new standards there would be no way for a woman to prove
she’s not pregnant. Thus, any woman could be denied contraception under
HHS’ new science.
The other rarely discussed issue here is whether hormonal contraception even does
what the religious right claims. There is no scientific evidence that
hormonal methods of birth control can prevent a fertilized egg from
implanting in the womb. This argument is the basis upon which the
religious right hopes to include the 40% of the birth control methods
Americans use, such as the pill, the patch, the shot, the ring, the
IUD, and emergency contraception, under the classification "abortion."
Even the "pro-life" movement’s most respected physicians cautioned the
movement about making these claims. In 1999, the physicians–who, like
the movement at large, define pregnancy as beginning at fertilization–
released an open letter to
community stating: "Recently, some special interest groups have
claimed, without providing any scientific rationale, that some methods
of contraception may have an abortifacient effect…The ‘hormonal
contraception is abortifacient’ theory is not established fact. It is
speculation, and the discussion presented here suggests it is
error…if a family, weighing all the factors affecting their own
circumstances, decides to use this modality, we are confident that they
are not using an abortifacient."
As the HHS proposal proves, the absence of fact or evidence does
not slow anti-abortion movement attempts to classify hormonal
contraception as abortion. With HHS’ proposal they have struck gold.
Anyone working for a federal clinic, or a health center that receives
federal funding–even in the form of Medicaid–and would like to
prevent a woman from accessing most prescription birth control methods
has federal protection to do so. As the HHS proposal details,
Because the statutes that would be enforced through this regulation seek, in part, to
protect individuals and institutions from suffering discrimination on
the basis of conscience, the conscience of the individual or
institution should be paramount in determining what constitutes abortion,
within the bounds of reason. As discussed above, both definitions of
pregnancy are reasonable and used within the scientific and medical
community. The Department proposes, then, to allow individuals and
institutions to adhere to their own views and adopt a definition of
abortion that encompasses both views of abortion. (emphasis mine)
So HHS proposes that anyone can enforce his or her own definition
of abortion "within the bounds of reason." And, it would seem the
bounds are pretty far flung. Most dangerously, perhaps, this new rule
establishes a legal precedent that may eventually be used as a basis
for banning the most popular forms of birth control along with what is,
in fact, abortion.
We have more on this story in our feature series Contra-bortion?
Or you can see all of our extensive coverage on the proposed HHS regulations.