Back to Blog Home

After several weeks of negative comment throughout the blogosphere, and embarrassingly scant notice in the traditional media, a leaked Department of Health and Human Services draft ruling (HHS-45-CFR) that defined contraception as abortion (see my previous post on this subject) has been finalized.

The text of the final ruling (HHS 45 CFR Part 88) is here.

HHS Secretary Mike Leavitt had previously protested in his self-written blog that the brouhaha was completely off-base:

HHA Secy. Leavitt

An early draft of the regulations found its way into public circulation before it had reached my review. It contained words that lead some to conclude my intent is to deal with the subject of contraceptives, somehow defining them as abortion. Not true.

Leavitt’s denial seems even more disingenuous now that the final version is out; it completely omits the definition of abortion that had been in the draft.

Removing this definition does nothing to clarify whether the proposed ruling would enable health care providers to decline to provide oral contraception, Plan B emergency contraception, other types of contraception, and information regarding these modalities. In fact, the new ruling defines health care program or service as “an activity related in any way to providing medicine, health care, or any other service related to health or wellness.”

According to today’s Washington Post, “Women’s health advocates, family planning advocates, abortion rights activists and others…condemned the regulation, saying it could create sweeping obstacles to a variety of health services, including abortion, family planning, end-of-life care and possibly a wide range of scientific research.”

California Supreme Court

Referring to two doctors’ decision to deny fertility procedures to a lesbian, California’s Supreme Court ruled this week that physicians could not use religious beliefs as an exemption to the state’s anti-discrimination laws.  The HHS ruling, broad as it is, seems to conflict directly with the California court’s decision and will almost certainly be used to challenge California’s ability to enforce a state law requiring employer health plans to cover contraception.

Because it requires the more than 584,000 hospitals, clinics, health plans, doctors’ offices and other entities that receive federal funding to certify in writing that they are abiding by the ruling, it appears likely that litigation will become the method for refining the omitted definition.

More work for lawyers.