Statement From State Senator Liz Krueger On Bush Administration's Stealth Attack On All Women's Right To Reproductive Health Services

Liz Krueger

September 25, 2008

"As they are packing their bags to leave Washington the Bush Administration is, yet again, attacking women's rights to reproductive health services. The U.S. Department of Health and Human Services has a proposed regulation that they claim will 'protect the conscience of health care providers who do not wish to participate in abortion'. The fact is that the regulations completely undermine many of the fundamental rights to reproductive health access that women across this country have fought for and could have the additional impact of superseding laws in states like New York who have been trailblazers for women's rights.

Below you will find a letter from myself and colleagues in the State Senate that was sent to the U.S. Department of Health and Human Services. This letter explains in detail why the proposed regulations need to be withdrawn."

                                                                                                                    September 21, 2008

Secretary Michael O. Leavitt
U. S. Department of Health and Human Services
200 Independence Avenue, S.W.
Washington, D.C. 20201

RE: Provider Conscience Regulations

Dear Mr. Secretary:

We, the undersigned New York State Senators, are writing to express our grave concern that proposed regulation, 45 CFR Part 88 – described by your office as intending to protect the consciences of health care providers who do not wish to participate in abortion care will jeopardize women's access to reproductive health services, and New Yorkers' access to health care more generally.

First, the text of the proposed regulations does not provide us with any assurances that they are not designed to undermine – or even directly challenge – our existing laws in New York State which protect access to reproductive health care. New York State has been a leader in ensuring women's access to reproductive health care, and has enacted numerous statutes and regulations that protect both health care providers and patients. For example, we were one of the first states to enact a "contraceptive equity" law, the Women's Health and Wellness Act (recently upheld by New York's Court of Appeals) which requires employers who offer prescription drug coverage to cover prescription contraceptives. New York State was also one of the first states to require hospital emergency rooms to offer emergency contraception to sexual assault survivors. Your proposed regulation fails to explain how it will interact with these laws. Indeed, an earlier draft of the regulation explicitly targeted these laws and others like them across the country as a "problem" that needed to be addressed. Although this problematic language has been removed, the proposed regulation offers no assurance that our State laws will not be jeopardized.

Second, the regulation explicitly permits health care providers to withhold basic information and counseling from their patients. Legal and ethical principles of informed consent require health care providers to inform patients about all treatment options, including those to which the provider objects or those which he or she does not provide. The proposed rule seems designed to do away with these essential safeguards. Instead, as a direct result of the proposed rule, patients may never be able to access the refused health care – or even know about their right or option to do so – due to their geographic, economic, or health care plan limitations. Thus, by absolving providers of their legal and professional responsibility to the patient, the proposed rule threatens to abandon patients in the face of a health care provider's refusal.

Third, the regulation appears to upset the careful balance between the religious freedom of health care providers and the health care needs of patients. In enacting these laws and others like them protecting patient care, New York State has worked hard to take account of the diverse religious and moral views of the citizens of this state. If this regulation is enacted, it could upend this careful balance. For example, the regulation does not explain how the prohibition on "discrimination" interacts with existing laws, such as Title VII of the 1964 Civil Rights Act and the New York State Human Rights law, setting forth the obligations of employers to accommodate employees' religious views. As a result, it creates confusion as to how health care institutions, including state-operated facilities, are to respond to objections of individual health care providers who refuse to perform core functions of their job, or who act in ways that could endanger patients. It also casts doubt on the state's continued authority to enforce provisions ensuring medical care for patients in need, such as professional misconduct laws prohibiting abandonment of a patient in need of care, and state laws requiring emergency treatment for patients at hospital emergency rooms.

Finally, these proposed regulations are Byzantine in both their scope and their application, and contain numerous vague and undefined terms. As such, their full impact is unclear. However, one thing is clear: enormous amounts of state funding are contingent upon compliance. This begs the question of how states like New York, or our institutions, are to comply, when the meaning of compliance is utterly uncertain.

As State Senators, it is our responsibility to enact laws that promote the wellbeing of our constituents, and of residents of the state as a whole. At worst, these regulations could potentially result in undermining State laws duly enacted through our democratic legislative process to serve those goals. At best, they would invite challenges that the state, or employers, would be forced to spend time and resources defending—the threat of which would in itself undoubtedly compromise patient care. In our view, that is hardly an appropriate role for a federal agency, particularly in an administration that purports to respect principles of federalism.

We therefore urge the U.S. Department of Health and Human Services to withdraw the proposed regulations.


Liz Krueger Eric Adams Neil Breslin

State Senator, District 26 State Senator, District 20 State Senator, District 46

Tom Duane Velmanette Montgomery Kevin Parker

State Senator, District 29 State Senator, District 18 State Senator, District 21

John Sampson Diane Savino Eric Schneiderman

State Senator, District 19 State Senator, District 23 State Senator, District 31

Jose Serrano Toby Ann Stavisky Andrea Stewart Cousins

State Senator, District 28 State Senator, District 16 State Senator, District 35