HHS Sec. Leavitt Replies; Discusses Contraception, Refusal Clause

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HHS Sec. Leavitt Replies; Discusses Contraception, Refusal Clause

Scott Swenson

HHS Sec. Michael Leavitt blogs about the proposed HHS regulations redefining contraception as abortion.

Last week I asked HHS Secretary Micahel Leavitt a question about proposed regulations that redefined contraception as abortion and since he was unwilling to reply in person, suggested he use his blog. Yesterday Planned Parenthood encouraged people to comment on his blog. Today the Secretary replied.

Sec. Leavitt writes:

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. Not only are there clear provisions in three separate laws
protecting federally-funded health care providers’ right of conscience,
but doing otherwise undermines the most fundamental moral underpinning
of freedom of expression and action. I asked that regulations be
drafted which would enforce these long-standing laws protecting a
medical practitioner’s conscience rights.

Roe has collapsed and Texas is in chaos.

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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.

The Department is still contemplating if it will issue a regulation
or not. If it does, it will be directly focused on the protection of
practitioner conscience. Many have provided comments on this subject and they will all be included under this posting.


Sec. Leavitt’s intention may not have been to redefine contraception as abortion, but the early draft of the proposed regulations did exactly that. It is good to know that was not his intent, and hopefully the drafters at HHS considering this proposal are now clear as well.

But Sec. Leavitt raises another issue, refusal clauses, suggesting that his intent is to make sure that medical professionals have a right to refuse to help patients who are requesting services the medical practitioner finds morally objectionable.

In medical ethics and even in religion, where the root of the refusal clause rests, there is an important point of view that Sec. Leavitt does not acknowledge. Jon O’Brien, President of Catholics for Choice articulates it this way;

"While some have pointed to Catholic teaching to
support the imposition of ever-more restrictive refusal clauses, they
do not reflect the Catholic position. Catholic teaching requires due
deference to the conscience of others in making decisions–meaning that
health-care providers must not dismiss the conscience of the person
seeking care. If conscience truly is one’s "most secret core and his
sanctuary [where] he is alone with God, whose voice echoes in his
depths," as the Catechism states, how can anyone, or any institution
for that matter, justify coercing someone into acting contrary to her
or his conscience?

goal of any reasonable conscience clause must be to strike the right
balance between the right of health-care professionals to provide care
that is in line with their moral and religious beliefs and the right of
patients to have access to the medical care they need. Within the field
of medical ethics, the accepted resolution to a conflict of values is
to allow the individual to act on their own conscience and for the
institution (the hospital, clinic or pharmacy) to serve as the
facilitator of all consciences.


Sec. Leavitt’s original question had to do with compelling someone to perform an abortion, and as is often the case by using that issue, as the Bush Administration is wont to do, most people would agree that no doctor should be forced to act counter to their beliefs. But the slippery slope quickly extends to, in this case, providing contraception because of mistaken notions promoted by anti-choice groups that contraception terminates, rather than prevents, a pregnancy. Contraceptives are not abortifacients.

Suddenly a rape victim is refused emergency contraception at hospitals, or a woman could be refused birth control at her local pharmacy. Then we see other people refusing to even assist someone getting to medical care that is her legal right, as in Arizona, and now the personal moral beliefs of one person trump those of another.

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.

In rural parts of the country this gets even more challenging, where hospitals and pharmacies are few and far between. Even in urban centers many neighborhoods are under-served by medical facilities, thus creating hardships on people seeking contraception to prevent an unintended pregnancy, potentially having to travel great distances only to be refused. Like many things in our culture, those with means may be able to drive around seeking another pharmacy, while lower-income people may not have that ability.

Where health care is concerned, we should hope that when conflicts arise, the "accepted resolution to a conflict of values is
to allow the individual to act on their own conscience and for the
institution (the hospital, clinic or pharmacy) to serve as the
facilitator of all consciences."

May our government also see its role as being a "facilitator of all consciences" and not seek to set one citizen in judgment of another, especially when it comes to the very private and personal decisions involved in sexual and reproductive health.


See Rewire’s coverage of the proposed HHS regulations.