A few months ago we looked at media coverage of the promulgation of a Bush administration rule dealing with the legal right of health care professionals to practice according to their consciences. Health care professionals who work at organizations that receive funding from the federal government have been protected from being forced to perform abortions since the 1970s. This rule — which costs “only” $44 million to implement — is about making sure those protections are enforced since some medical organizations and societies have penalized or were planning to penalize medical professionals who objected to various abortion-related procedures.
I think it’s safe to say that this distinction hasn’t been made clear in much media coverage — when the Bush rule was proposed last August, when it was finalized in December or … now.
It’s back in the news because the administration of President Barack Obama announced its plan to rescind the rule. The Los Angeles Times broke the story on Friday. It began with the perspective of the Obama administration but tried to get the perspective of defenders of the regulation as well. Here’s how the story ended:
In promulgating the rule last year, then-Health and Human Services Secretary Mike Leavitt said it was necessary to address discrimination in the medical field.
Leavitt criticized “the development of an environment in the healthcare field that is intolerant of individual conscience, certain religious beliefs, ethnic and cultural traditions, and moral convictions.”
But critics complained the language of the rule is overly broad, covering any “activity related in any way to providing medicine, healthcare and other service relative to health and welfare.”
Obama officials said the administration’s goal is to make the rule clearer rather than force doctors to provide abortions.
“The Bush provider-refusal regulation has created confusion about the scope and original intent of the law,” one official said.
“It went into effect in the last days of the Bush administration, claiming to bring clarity to current law. But instead it created much confusion… .
“Not only does it potentially make it harder for women to get the care they need, but it is worded so vaguely, that some have argued it could limit counseling, family planning, even blood transfusions and end-of-life care.”
This perspective of Obama officials — always anonymous — was included in most every story. I wish it had been fleshed out a bit more. Would the Bush rule protect Catholic doctors at federally-funded facilities who have conscientious objections to prescribing birth control? Would Obama officials really oppose job protections for such doctors working at federally-funded facilities? Many stories described these two perspectives but didn’t quite get past the dueling sides talking points and spin. It left me confused. Also, how in the heck would blood transfusions and end-of-life care be involved in this discussion? If you’re going to quote someone making that claim, could you at least explain what in the heck they’re talking about and whether it is reasonable? NPR’s story had similar problems to the Times story, albeit with less balance.
Bloomberg reported a more narrow disagreement — dealing solely with provision of abortions or assistance in providing abortions. It also made clear that the rule dealt with groups that take federal funds.
Here’s the Associated Press. CNN.com had a rather one-sided account. The New York Times piece was much more interesting and included the best religion angle:
The rule prohibits recipients of federal money from discriminating against doctors, nurses and other health care workers who refuse to perform or assist in abortions or sterilization procedures because of their “religious beliefs or moral convictions.” Its supporters included the United States Conference of Catholic Bishops and the Catholic Health Association, which represents Catholic hospitals.
In praising the Bush administration last fall, Sister Carol Keehan, president of the Catholic Health Association, said that in recent years “we have seen a variety of efforts to force Catholic and other health care providers to perform or refer for abortions and sterilizations.”
The New York Times story also explained opponents’ objections in greater detail! It said that some opponents said the rule could have voided state laws that require insurance companies to cover contraceptives and, for rape victims, drugs that prevent implantation of embryos. Others said that the rule could allow drugstore employees to refuse to fill contraception prescriptions. I wonder if this means that there are federally-funded drug stores or how such a claim could be made. Finally, some opponents say the rule isn’t needed because it’s duplicative. Not a bad story.
But I really thought Rob Stein’s write-up for the Washington Post advanced the story better than anything else. He included all the same details that everyone else did but wrote a story that was so much more interesting (even if he still uses the annoying scare quotes around “conscience”):
The administration’s plans, revealed quietly with a terse posting on a federal Web site, unleashed a flood of heated reaction, with supporters praising the proposal as a crucial victory for women’s health and reproductive rights, and opponents condemning it as a devastating setback for freedom of religion.
Perhaps most tellingly, the move drew deep disappointment from some conservatives who have been hopeful about working with the administration to try to defuse the debate on abortion, long one of the most divisive political issues.
“This is going to be a political hit for the administration,” said Joel Hunter, senior pastor of the Northland Church in Longwood, Fla., whom Obama recently named to his Advisory Council on Faith-Based and Neighborhood Partnerships. “This will be one of those things that kind of says, ‘I knew it. They talk about common ground, but really what they want is their own way.’”
Exactly. It’s not terribly surprising that abortion rights supporters are pleased with Obama’s move and that the rule’s supporters think it’s an abomination — we’re used to those sides of the debate lining up exactly as they are. But the big story with Obama has been that he’s drawn support from some pro-lifers. How do they feel? Particularly since this isn’t he first abortion-related decision to go completely against their wishes?
Stein gets plenty of perspective from all sides and even lets sources go back and forth a bit. He ends with a discussion about whether compromise is possible. A woman with a progressive group says another rule could be promulgated that protects some conscience objections but doesn’t give medical professionals the right to opt out of contraception work, the Rev. Frank Page notes that some health-care workers have conscience objections to providing pills that prevent implantation of embryos, and it ends with a liberal woman saying compromise isn’t something her group would support anyway. It may not be hopeful but it’s definitely interesting and a more full discussion.
As a reporter, I tend to write stories with “just the facts, ma’am.” I’ve had more than a few editors ask me “so what?” or “why should general readers care?” Stein did a great job of answering those questions while also laying the facts out. Good work.
 | Posted at 11:39 am |  Print
| Permalink | Trackback |
Comments (30) |
March 2, 2009, at 12:24 pm
The actual change has not been made but you write in terms that is already has. The leak you quoted says that the Bush rule will be modified but not repealed but that is enough for you to effectively state that it goes completely against their wishes. I have not seen any media reports that indicate what the actual proposal will be so any conclusions are premature.
This is a very, very tricky area and stories should indicate how broad the conscience issue could be. For example, would it be OK if a Muslim emergency room doctor refused to treat anyone with alcohol on their breath? How do you draw the line that avoids the Establishment Clause?
And stories should indicate that doctors have had the right to not perform abortions for decades already. There are a few running around and yelling “the sky is falling.”, but the real facts are otherwise and should be brought out in news stories.
I do wonder what will happen if the Obama administration actually just proposes clarifying the rule and not repealing it? Presumably neither extreme side of this issue will be satisfied.
This is one time when it would be more helpful for the media to actually wait until there is a real story to report rather than whipping up a froth of speculation as in this case. I’m looking forward with anticipation and dread to what the reporting will be when the rule change is actually proposed.
March 2, 2009, at 12:34 pm
The only thing I can think of related to blood-transfusion would be the hypothetical case of a Jehovah’s Witness/Orthodox Jewish doctor refusing to give a patient a blood transfusion.
I have no idea if this happens in practice or indeed has ever happened. There have, however, been cases even here in Ireland of people going to court because they wanted to refuse blood transfusions or were given one as part of their medical treatment against their will.
Any Jehovah’s Witness/Orthodox Jewish medical personnel who can clarify this? (Hint: I sorta kinda think they wouldn’t apply it to a patient not of their faith, but what do I know? The only knowledge I have of this is one of the Faye Kellermann novels where the Orthodox Jewish wife of the detective hero has her self-donated blood stored in her maternity hospital in case she needs a transfusion during delivery).
March 2, 2009, at 12:41 pm
Jerry,
Rulemaking is a lengthy, lengthy process. The “last minute” Bush rule was first mentioned in April of last year, for instance. It only went into effect in late December or January. And that’s just the public portion of the rulemaking.
Obama announced the intent to *rescind* the rule last week through the normal “anonymous” channels (normal for the Bush admin, at least) and something went up on the OMB website by Friday about RESCINDING the rule. He also had earlier announced his intent to review all recent regulations put forth by Bush — weeks ago.
Rescinding the rule is different from modifying a rule. While it could be modified instead of rescinded, I don’t think anyone on either side of the debate expects that to happen. Read Rep. DeGette’s comments or those from people on the other side, for instance.
At least as regards the significance of Obama’s intent to rescind, I think reporters got that part right.
And yes, I am a complete nerd who thinks that rulemaking and regulatory behavior in general is where all the government action is.
March 2, 2009, at 12:49 pm
Mollie asks:
In 1994, my Life Partner approached the end of his journey. We selected a program of in home hospice, a Federally funded program. What made this feasible, since I had no training in health care, was that every day someone who did know what to do would come in for several hours and provide the skilled care. We entered the program. Each and every one of the skilled care providers, all of whom had been educated with taxpayer dollars, refused to provide any care on the grounds of their religious opposition to Gay people. So, for several weeks a dying man was left without skilled care on religious grounds. I did the best I could, but it was nowhere good enough. This is an issue that Gay people have been dealing with for decades, and that is why end of life issues are included in the legislation.
March 2, 2009, at 12:57 pm
Mollie asks:
The economic term here is ‘monopsony’, companies with one buyer, which is the Federal government. Lots of mail order pharmacies work only with Medicare and Medicaid. And almost all Drugstores deal with Federally funded program. So, a minimum of Googling, would show that this is the case.
March 2, 2009, at 1:00 pm
Dalea,
Thanks for the suggestions.
In both cases can you point to the text in the regulation that would support your claims?
I know that the regulation didn’t even deal with all federal funding or even all HHS funding but “some” — but I don’t know which funds qualify.
I’m having trouble finding the text of the regulation. Any help would be appreciated.
March 2, 2009, at 1:01 pm
Spoke too soon — here is the rule. Let me know if a particular section applies to what you’re saying:
http://edocket.access.gpo.gov/2008/E8-30134.htm
March 2, 2009, at 1:11 pm
Mollie, I am not an attorney and really don’t know how to read regulations, other than as they apply to accounting. My first example was a personal one, something that a large number of Gay men have gone through. The second was an example of how there really are ‘federally funded’ pharmacies. Both of these are in response to questions you raised concerning press coverage of the rule changes, not comments on the regulations themselves.
March 2, 2009, at 1:16 pm
Dalea,
I think they are good ideas. I just wasn’t sure if they applied to this actual regulation. And reporters should know that (not you, necessarily!) if they’re writing out the claims.
In looking through the regulation I think that your first point may in fact be exactly what was being suggested by those reports. I’m hoping to speak with someone more knowledgeable about the regulation to find out. On the other hand, I think that the reg applies to conscientious objections to procedures rather than people. I’m not sure. I’ll let you know what I find out. I can see arguments being made in either direction.
March 2, 2009, at 3:31 pm
Mollie’s shorthand of “objections to procedures, not people” is a decent rule of thumb to understand what the regulation really says. Many of the criticisms of this regulation are simply false interpretations.
Here is the section of the reg that addresses person-specific discrimination:
The regulation does not enable discrimination against any federally protected class of people. It specifically says that federal civil rights laws rule in a conflict.
March 2, 2009, at 3:52 pm
Mollie,
It’s true that the majority of stories are now saying that the proposal will be to repeal the Bush rule, but that was not what you initially cited.
I found the CBN story http://www.cbn.com/CBNnews/550414.aspx to be very interesting in that respect since it shows exactly how broad the Bush rule can be interpreted:
So, from this perspective, the issue is not about pro- versus -anti-abortion, but instead about the rule getting in the way of contraception and family planning which help in reducing the number of abortions.
This nuanced view of the situation is, of course, far beyond the normal media “sky is falling” stories, but it’s really worth keeping in mind. Al Dalea so sadly pointed out: there is a conflict of rights. His partner had a right to treatment which others denied to him.
Upholding the right of patients to get vaccinations and blood transfusions, to pick the end of that spectrum, is important and not secondary to the rights of people to refuse to do such things on the basis of religious belief. I realize that’s an extreme case, but who believe that Bush regulation should stand as written should show how that does not apply to that situation.
And given that this regulation only took effect on Jan. 20th, I also look forward to reading stories about how repealing it and returning to the prior status quo ante would be such a drastic change.
March 2, 2009, at 4:01 pm
Jerry,
I think the stories I cited in the post above did say that Obama planned to rescind the rule. I am confused.
Also, my very first journalistic point was that media coverage failed miserably in distinguishing the old regulations protecting doctors from being forced to kill unborn children and the new regulation which bolstered that position.
If you look at my GR post from December, that was my main beef with coverage. Everybody made it out like Bush was inventing a conscience rule and missed the point — long held by HHS — that it was protecting doctors who were facing discrimination despite those regulations.
March 2, 2009, at 4:44 pm
The CBN quote is more hype. How many hospitals allow (and how many patients want) janitors to “provide services, information or advice to patients on subjects such as contraception, family planning, blood transfusions and even vaccine counseling”???!!! Give me a break…
Here’s what HHS had to say about the argument that the regulation would adversely affect access to prescription birth-control:
March 2, 2009, at 4:54 pm
dalea—I find it difficult to believe that EVERY health care worker refused to provide medical help to your partner because he was Gay and that this refusal was based on religious reasons. I don’t know about other religions, but around the world Catholics and hundreds of Catholic groups provide hospice care for AIDS patients who are Gay. In some places it is Catholics—and not the government— who are providing the only compassionate care.
March 2, 2009, at 5:12 pm
The reason the law is rescinded is because Obama is making a full court press to promote abortion…
But it’s not just abortion: Euthanasia is on the sidelines, especially with California requiring doctors by law to “advise” their patients on “all options on end of life care”…
And one news story says that most Washington County hospitals won’t allow euthanasia…many hospitals after RoeVWade did the same, but county hospitals were sued to allow abortion by physicians on their staff…expect the same thing with euthanasia in the near future.
As for federal docs: When Clinton tried to mandate abortion in military hospitals, docs refused and won…and most IHS hospitals faced opposition by tribal members. Don’t know if it will happen again..
March 2, 2009, at 5:15 pm
Mollie,
The sentence I noticed about the rule that I was keying on in my post was:
March 2, 2009, at 5:16 pm
re: “Birth control”
Most of the “birth control” that the Obama supporters are discussing is the “morning after” pill, which is abortifactant since it stops the fertilized egg from implanting in the uterus.
They just changed the definition of pregnancy from fertilization to implantation, so they can deny what the pill does.
March 2, 2009, at 6:33 pm
Deacon John, this was an in-home hospice run and funded by Medicaid. There were two nurses who provided the medical care. And about 12 Certified Nurse Assistants, they were the ones who refused. Their responsibility was to come in once or twice a day to monitor vitals, provide medication, bedbaths etc. The nurses told me that all were religious conservatives whose churches had made them promise not to provide care for gay people. The interfaith agency we were working thru had numerous instances of this sort of activity. And I have met others who have been in this situation.
Even known gay men who had been bashed and then turned away from an ER by conservative religionists. Or left to bleed in a hallway while the ER scrambles to find a nurse who does not object to treating gay people. The situation is very, very common.
March 2, 2009, at 10:43 pm
Dalea, what you describe is an eye-opener. The press has been more supportive of gay rights/gay rites recently but I haven’t seen coverage of the stuff you describe.
March 2, 2009, at 10:56 pm
While the protections of conscience in terms of provision of abortion, sterilization and family planning seem to be pretty well spelled out in the existing rule, there are some sections that seem pretty vaguely worded. Does the existing rule leave certain populations vulnerable to denial of treatment? I think Dalea would say so, and just reading quickly through the rule (thanks for the link, Mollie) I am also left wondering whether health care workers might use some of the language to justify denying medical treatment to, for example, undocumented immigrants. Are there any newspaper stories out there that would clarify those points for us, Mollie?
March 3, 2009, at 1:22 am
The gay press covers the story. Recently it was a Lesbian couple with children who were in FL on vacation. One of them became very ill, an anuerysm, and was taken to a hospital. The other one and the children rushed there to be with her. The hospital refused to let her be with her partner even when shown powers of attorney etc. They also refused to let the children see their dying mother. The woman died without saying or hearing goodby from her family. This happens all the time. Religious hospitals are particularly notorious.
Which is why this issue is so pernicious. Note that the discussion imediately goes to abortion. On the rare occasions when Gay issues get into the general news, the problems with health care workers is almost never brought up.
March 3, 2009, at 1:31 am
Dalea,
Links to the gay press accounts please!
Sabrina,
I have the same reading (on everything but the immigration stuff). Haven’t seen ANY decent coverage of how to interpret the wording of the regulations. Maybe reporters need more time.
March 3, 2009, at 11:20 am
Mollie, you might be interested in this Catholic News Service article:Physicians take legal, educational steps to defend conscience rights: http://www.catholicnews.com/data/stories/cns/0900876.htm
It seems that there is quite a bit that is going on here. Needing to intervene against lawsuits is pretty serious stuff.
March 3, 2009, at 8:59 pm
On the tragic death of a Lesbian:
http://www.lambdalegal.org/news/pr/lambda-legal-sues-florida.html
Some more:
http://www.lambdalegal.org/our-work/in-court/cases/flanigan-v-university-of-maryland.html
http://www.lambdalegal.org/news/pr/gay-spouse-recognized-st-vincents-wrongful-death.html
http://www.lambdalegal.org/our-work/in-court/cases/bragdon-v-abbott.html
http://www.lambdalegal.org/our-work/in-court/plaintiffs/dawn-and-jen-barbouroske.html
Tools for dealing with this:
http://www.lambdalegal.org/publications/take-the-power/your-health-care-wishes.html
http://www.lambdalegal.org/our-work/in-court/cases/in-re-spera.html
http://www.lambdalegal.org/our-work/in-court/cases/in-re-cecil-little.html
http://www.lambdalegal.org/news/pr/clinic-settles-anti-gay-bias.html
http://www.lambdalegal.org/news/pr/lambda-legal-mourns-the-death.html
http://www.lambdalegal.org/news/in-the-news/self-is-your-doctor.html
Dinner time, more later.
March 3, 2009, at 9:11 pm
Dalea,
Thanks for the links but I was hoping you had (fairly recent) links to gay press stories about the matters.
Did the gay press cover these?
March 3, 2009, at 10:29 pm
Something possibly overlooked in the coverage: the rule gives conscience protection to institutions as well as individuals.
From Catholic News Agency:
“According to the HHS press release, the final rule clarifies that non-discrimination protections apply to institutional health care providers as well as individuals who work for recipients of HHS funds.”
This explicit institutional protection may be new. It is certainly controverted.
I recall the ACLU’s Reproductive Freedom Project has a history of hostility to treating anti-abortion/pro-life institutions as conscience-bearing entities.
March 3, 2009, at 11:05 pm
Mollie, these are press releases from Lambda Legal which appear in the gay press all over the country. Rest assured that each and every one was fully covered. These stories were also used by the Noon8 campaign in their mailings.
March 4, 2009, at 12:27 am
Some more from online Gay press, and some of the regular press who also mention the matter:
http://www.commondreams.org/headlines05/0327-02.htm
http://wcco.com/politics/gay.marriage.hospital.2.366176.html
http://www.newstatesman.com/200410040017
This used to be fairly standard US treatment:
http://www.towleroad.com/2006/04/brutal_gay_bash.html
http://www.glaa.org/glov/archive/1996/glovfire.html
That’s what a cursorary search found.
March 4, 2009, at 10:48 pm
Dalea-
You’ve only provided advocacy press releases and details of events outside the US. Most of what you link to regards hospital rights of gay partners and not the withholding of medical treatment. Do you have anything like Mollie asked for, something along the lines of what might convince Deacon John (#14)?
March 4, 2009, at 11:54 pm
This is what I found online. Many of the instances I reffered to involved personal experiences and those of people I know. Many of them were in the AIDS Pandemic. They may predate the internet. I will continue searching. Two agencies (Regional Aids Interfaith Network and Fort Smith Feights AIDS) confirmed to me that the sort of denial of care I experienced was quite common. And the Band Played On documents the phenomena. As do the ACT-UP information.