By Jeffrey Young - 01/15/09 07:23 PM EST
The attorneys general of Connecticut and six other states filed suit in federal court Thursday seeking to block the implementation of a controversial Bush administration rule they say would limit women’s access to contraceptives.
The Department of Health and Human Services (HHS) issued the regulation last month, saying it is needed to protect healthcare workers against discrimination by their employers if they decline to participate in abortions or other practices that violate their religious, moral or ethical beliefs.
Though Obama and the Democratic Congress have regulatory and legislative means at their disposal, the courts could act more swiftly to block the regulation, which is set to take effect on Jan. 20, the day Obama will be inaugurated as president.
Connecticut Attorney General Richard Blumenthal (D) filed the lawsuit along with his counterparts in California, Illinois, Massachusetts, New Jersey, Oregon and Rhode Island in U.S. district court in Connecticut. They seek an immediate injunction against HHS implementing and enforcing the regulation.
“On his way out, the Bush administration has left a ticking legal time bomb set to explode literally the same day of the Inaugural and blow apart vital constitutional rights and women’s healthcare,” Blumenthal said on a conference call with reporters.
The Planned Parenthood Federation of America filed a separate lawsuit in the same court, while the American Civil Liberties Union (ACLU) and the National Family Planning and Reproductive Health Association filed a third suit.
“As a critical provider of healthcare information and services for women, Planned Parenthood cannot simply stand by and let this harmful regulation go into effect,” said Cecile Richards, president of the Planned Parenthood Federation of America.
The regulation sparked uproar from Democrats, abortion-rights groups, women’s health advocates and healthcare industry groups including the American Medical Association, the American Hospital Association and the National Association of Chain Drug Stores.
Obama blasted the regulation when HHS issued an early draft in August.
“This proposed regulation complicates, rather than clarifies the law. It raises troubling issues about access to basic healthcare for women, particularly access to contraceptives. We need to restore integrity to our public health programs, not create backdoor efforts to weaken them. I am committed to ensuring that the health and reproductive rights of women are protected,” Obama said at the time.
Obama could issue a new regulation repealing the Bush rule, but that process would take at least three to six months. Lawmakers like Sen. Patty Murray (D-Wash.) are eyeing a legislative remedy to undo the regulation, but that, too, would take time.
HHS Secretary Mike Leavitt, who conceived of the regulation, has consistently defended it against critics and maintains that it is intended only to apply to abortion, not contraception. Leavitt says the regulation only enforces current “provide conscience” statutes designed to protect medical facility employees from retribution.
“Doctors and other healthcare providers should not be forced to choose between good professional standing and violating their conscience,” Leavitt said last month. “This rule protects the right of medical providers to care for their patients in accord with their conscience.”
Anti-abortion-rights activists cheered the Bush administration for taking steps to protect healthcare workers’ rights of conscience.
“Recognizing that a right of conscience among healthcare workers needs to be enforced to ensure that healthcare providers are not discriminated against, such regulations would not undermine women’s access to healthcare, despite what pro-abortion groups would have Americans believe,” Family Research Council President Tony Perkins said last month.
“Rather, these regulations would implement conscience protections that are constitutionally guaranteed and have been embodied in statutory law for the past 35 years,” Perkins said.
Among opponents’ numerous complaints about the regulation is that it does not explicitly define abortion, which they say could permit healthcare workers to deny birth control to women or even emergency contraceptive “morning-after pills” to rape victims.
They say the regulation is too broad and could be interpreted to apply to any employee at a medical facility, not just physicians, nurses and other practitioners.
In addition, opponents contend that these employees would not be required to refer patients to providers who would offer the relevant services and could even turn patients away without notifying their own supervisors.
The state attorneys general and the organizations filing the suits also want the regulation overturned on legal and constitutional grounds. “The regulation exceeds the statutory authority that Congress has given,” Blumenthal said.
The rule “blows apart the carefully crafted state statutes that we have,” he added.
“For years, federal law has carefully balanced protections for individual religious liberty and patients’ access to reproductive healthcare,” Jennifer Dalven, the deputy director of the ACLU’s Reproductive Freedom Project, said in a statement. “The Bush rule takes patients’ health needs out of the equation. We are asking the court to restore the balance,” she said.
The three lawsuits are likely to be consolidated by the federal court in Connecticut, said Roger Evans, Planned Parenthood senior director for public policy litigation and law.