Pre-empting FOCA?

The Bush administration has decided to push last-minute rule changes in the lame-duck period that would strengthen protections for health providers with religious objections to abortion and contraception.  Objections have come from within the administration itself and from states and providers over the new rules, which they claim greatly overreach already-existing protections and obliterate compromises reached on these issues.  It appears that President Bush has decided to pre-empt the Freedom of Choice Act as his last major domestic effort:

A last-minute Bush administration plan to grant sweeping new protections to health care providers who oppose abortion and other procedures on religious or moral grounds has provoked a torrent of objections, including a strenuous protest from the government agency that enforces job discrimination laws.

The proposed rule would prohibit recipients of federal money from discriminating against doctors, nurses and other health care workers who refuse to perform or to assist in the performance of abortions or sterilization procedures because of their “religious beliefs or moral convictions.”

It would also prevent hospitals, clinics, doctors’ offices and drugstores from requiring employees with religious or moral objections to “assist in the performance of any part of a health service program or research activity” financed by the Department of Health and Human Services.

EEOC officials object to the new rules, as did the state of Connecticut, claiming that they are both unnecessary and too complicated.  The Civil Rights Act of 1964 already prohibits discrimination based on religion, and the new rules will further confuse employers as to the definition of undue hardship, the point at which employers can demand employees to follow procedures.  They also object to the sudden submission of these new rule changes, pointing out that the White House missed two of its self-imposed deadlines for new regulations.

To some extent, they may have a point.  If a Muslim pharmacist refused to dispense birth control to unmarried women, for instance, I suspect he’d get a lot less sympathy than a Christian pharmacist would under similar circumstances.  An owner of a pharmacy can choose not to stock those remedies, of course, but when a pharmacist works for someone else, they can’t make that choice — and if they’re the only pharmacist available to dispense medication, that would mean that pharmacy would lose customers.

However, this isn’t really about dispensing the Pill.  It’s about forcing hospitals and clinics who offer OB/GYN services and accept Medicare and other federal funding to provide abortions.  The Freedom of Choice Act completely federalizes the issue of abortion, making Congress the sole arbiter of restrictions — which FOCA explicitly repeals entirely.  It also repeats the canard that abortion isn’t available in 87% of the country (despite which 22% of all pregnancies in the US end in abortion) and that FOCA intends to rectify that.  How?  The only option available would be a requirement that all OB/GYN clinics and hospitals provide abortions on request.

The Catholic Church runs almost a thousand health care facilities and treated over 90 million patients in 2007.  They have already said that passage of FOCA would likely force them to close down most or all of these facilities in order to avoid being forced to provide abortions.  The Bush rules attempt to prevent that from happening.  The incoming Obama administration will be forced to repeal them before imposing FOCA, a not insurmountable obstacle but one which will make their intention to force OB/GYN providers to become abortionists plain.

Addendum: The Gerard Health Foundation has awarded its first-ever Life Prizes, giving $600,000 to six deserving recipients.  Our friend Jill Stanek is one of the inaugural recipients.

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