HHS and ACOG Battle Over OB/GYN Conscience Rights

In a controversial move, last Thursday, HHS proposed regulations that would prevent healthcare providers from being compelled to refer patients to abortion providers if doing so would violate the provider’s conscience. Before diving into the proposed rule, let’s quickly consider the history of this issue.

ACOG Opinion

On November 7, 2007, the American College of Obstetricians and Gynecologists (ACOG) Ethics Committee issued Opinion Number 385, which is entitled “The Limits of Conscience Refusal in Reproductive Medicine.” The Opinion provided that those who failed to refer patients to abortion providers risked losing their Board certification even if providing such a referral would violate the provider’s conscience.

The Opinion, in relevant part, stated: “Physicians and other healthcare professionals have the duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that their patients request.” In addition, the Opinion provided that every provider had an obligation to perform an abortion in an “emergency” if failing to perform the same “might negatively affect a patient’s physical or mental health.”

HHS Response

In a letter to the ACOG dated March 14, 2008, Health and Human Services Secretary Michael Leavitt reminded the ACOG that federal law protects providers who exercise their conscience rights and he urged the ACOG to confirm that it would not use Opinion 385 as a basis for revoking (or refusing to grant) Board certifications. In relevant part, his letter provided as follows.

“As you know, Congress has protected the rights of physicians and other health care professionals by passing two non-discrimination laws and annually renewing an appropriations rider that protect the rights, including conscience rights, of health care professionals in programs or facilities conducted or supported by federal funds. (See 42 U.S.C. § 238n, 42 U.S.C. § 300a-7, and the Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, 121 Stat. 1844, § 508)… I am concerned that the actions taken by ACOG and ABOG could result in the denial or revocation of Board certification of a physician who — but for his or her refusal, for example, to refer a patient for an abortion — would be certified. These actions, in turn, could result in certain HHS-funded State and local governments, institutions, or other entities that require Board certification taking action against the physician based just on the Board’s denial or revocation of certification. In particular, I am concerned that such actions by these entities would violate federal laws against discrimination.”

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