Sepper says the rule could also mean that states that cover abortion in their health-care plans, such as California, or that require faith-based Crisis Pregnancy Centers to disclose that they don’t provide medical care, could be stripped of federal health-care dollars.
Theroit, from ADF, dismissed concerns like these, saying, “I’m not aware of any situation where any civil rights law would be expanded to that depth. That’s a parade of horribles that has never paraded.” In an emailed statement, Severino said that “the proposed rule does not create any new protections in law that do not already exist, but faithfully enforces what Congress began requiring decades ago,” when it comes to procedures like, “abortions, sterilizations, and assisted suicide.”
The rule is not final yet, but Sepper says it is “highly likely to become final in more or less this form.”
There are already federal laws that protect medical personnel from being required to provide abortions. In addition, nearly every state also allows health-care providers to refuse to perform abortions, and 12 states allow them to refuse to provide contraceptives. In six states, even pharmacists are allowed to refuse to fill birth-control prescriptions.
According to reproductive-rights groups, the problem is these laws often mean patients who are denied services aren’t then referred to a doctor who will provide the care. According to one poll, only 57 percent of doctors nationally believe objecting physicians must refer patients to an accommodating provider. “Only in a couple of states are patients given information and referrals,” says Elizabeth Nash of the pro-choice Guttmacher Institute.
This HHS rule doubles down on the idea that conscientiously objecting physicians shouldn’t be required to refer patients to willing providers, according to Martha Swartz, an attorney who has studied conscience clauses. The proposed rule defines “referral” as providing “any information,” including a phone number or website on a pamphlet, about a health service that the provider disagrees with.
While groups like the ADF and the Trump administration seem more focused on protecting the rights of religious health-care workers, the rule’s critics say they’re focused on the patients. The proposed rule “totally doesn’t recognize professionals’ obligations to put their patients’ medical interests before their personal interests,” says Swartz.
Louise Melling, a deputy legal director at the American Civil Liberties Union, sent me a few examples demonstrating the flip side of Hellwege’s case, in which patients were denied care on religious grounds.
One 2000 case involved a New Jersey labor-and-delivery nurse named Yvonne Shelton, whose Pentecostal faith meant, to her, that she could not participate “directly or indirectly in ending a life․” In 1995, Shelton’s hospital admitted a patient who was “standing in a pool of blood” and diagnosed with placenta previa. The doctor ordered an emergency C-section, and Shelton was told to scrub in to assist. But when she learned the procedure would terminate the pregnancy, Shelton refused to participate, delaying the procedure by 30 minutes, the hospital claimed. Shelton was fired after refusing another job within the same hospital.