HHS Poised to Issue Midnight Regulation Jeopardizing Women’s Health
Washington, DC — Planned Parenthood Federation of America (PPFA), the Center for Reproductive Rights, and the American Civil Liberties Union (ACLU) today sent a letter to the U.S. Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget urging OIRA to take its responsibilities seriously with respect to the Department of Health and Human Services (HHS). HHS is moving forward with a final regulation that will allow health care providers to withhold vital health care information and services from patients.
“It’s unconscionable that the Bush administration, while promising a smooth transition, would take a final opportunity to politicize women’s health,” said PPFA President Cecile Richards. “People want government to find commonsense solutions to problems, not to create them by allowing health care providers to withhold critical information and services at a time when affordable health care is hard enough to come by.”
Currently, there are 45.7 million uninsured Americans, and more than 17 million women need assistance accessing family planning services.
"Ultimately, low-income women, who already face tremendous obstacles getting health care and rely more on public programs, will be hit the hardest by this regulation," said Nancy Northup, president of the Center for Reproductive Rights. "This new rule violates a woman's rights and needs as a patient and, in the end, only erects new barriers to her access to reproductive health care."
"Federal law has sought to balance protections for individual religious liberty and patients' access to reproductive health care. The proposed regulation, being pushed through at the 11th hour of the Bush administration, takes patients' health needs out of the equation," said Caroline Fredrickson, director of the ACLU Washington Legislative Office. "At a time when more and more Americans are either uninsured or struggling with the soaring costs of health care, the federal government should be expanding, not hampering access to important health services."
In May 2008, the White House issued a directive to administrative agencies to submit all proposed regulations by June 1, 2008, except in “extraordinary circumstances.” The purpose of the deadline was to ensure that agencies did not engage in ill-conceived rulemaking prior to a change of administration. Yet HHS submitted its proposed rule in late August 2008 and put it on the fast track with a shortened 30-day public comment period and no public hearing. Despite the shortened comment period, roughly 200,000 comments were submitted in opposition to this regulation from medical associations, women’s health organizations, members of Congress, state governors and attorneys general, religious leaders, and the general public. Yet, at this point, the administration is dangerously close to issuing a final rule that would be disastrous to women’s health less than 60 days before the next administration takes office.
The Bush administration has failed entirely to explain how the HHS regulation meets the “extraordinary circumstances” standard laid out in the May 2008 White House directive, and it is the responsibility of the OIRA to hold the administration accountable.
Click here to read the full joint letter to OIRA from PPFA, the Center for Reproductive Rights and the ACLU, or read the copy below:
November 17, 2008
Hon. Susan E. Dudley
Office of Information and Regulatory Affairs
Office of Management and Budget
725 17th Street, NW
Washington, DC 20503
Fax: (202) 395-3047
Dear Ms. Dudley:
The undersigned groups committed to women’s health are writing to urge OIRA to take its responsibilities seriously with respect to the Department of Health and Human Services’ (HHS) “Provider Conscience Regulation” (RIN 0991-AB48, 73 Fed. Reg. 50274 (Aug. 26, 2008) (to be codified at 45 C.F.R. pt. 88).
As you are well-aware, on May 9, 2008, White House Chief of Staff Joshua Bolten issued a directive for agencies to submit all proposed regulations they wish to finalize before the end of the Bush Administration by June 1, 2008, except in “extraordinary circumstances.” Mr. Bolten’s directive explicitly sought to “resist the historical tendency of administrations to increase regulatory activity in their final months.” The purpose of the deadline was to ensure that agencies did not engage in ill-conceived rulemakings prior to a change of administration.
Yet this is exactly what HHS is doing with the Provider Conscience regulation. These regulations, which relate to statutes that have been on the books for years (in one case, since the 1970’s) were not proposed until late August 2008. Moreover, HHS has put the rule on the fast track with a shortened 30-day public comment period and no public hearing.
This unjustified last minute regulatory rush, in clear contravention of the Bolten directive, was drawn to your attention by the Institute for Policy Integrity (IPI). In its letter dated September 5, 2008, IPI requested that you enforce Mr. Bolten’s directive by either explaining the “extraordinary circumstances” that require the issuance the Provider Conscience regulation, or preventing the promulgation of this eleventh-hour regulation. Your response to that request, dated October 9, 2008, suggested that the Provider Conscience regulation is a “circumstance in which it would be appropriate for individual regulations to proceed without regard to deadlines if approved by OIRA, working closely with the heads of the President’s policy councils.”
You have failed entirely to explain how the Provider Conscience regulation meets the “extraordinary circumstances” standard laid out in the Bolton Memorandum. If OIRA believes that extraordinary circumstances exist for this proposed regulation and plans to allow HHS to proceed with finalizing these regulations before the end of the Administration, we believe that OIRA owes the American public a clear explanation of the extraordinary circumstances that justify allowing this to happen. We request that OIRA provide that explanation as soon as possible.
As demonstrated in the thousands of comments that HHS received in response to the proposed rule, this ill-conceived, last-minute regulation could have a dramatic negative effect on the delivery of basic healthcare to women. OIRA should take its responsibilities seriously and not allow HHS to engage in ill-conceived, last-minute rulemaking – under the endorsement of OIRA.
Furthermore, we request that OIRA and OMB require HHS to undertake a more formal accounting of the costs and benefits of the proposed Provider Conscience regulation. As IPI’s September 5 letter explained, the analysis performed by HHS was cursory and wholly inadequate. That cost-benefit analysis does not even attempt to address the real cost of the regulation for women, especially low-income women, whose access to basic reproductive health services, including contraception, as well as information about those services, may be limited as a result of the regulation.
We hope that you will give this vital matter your prompt attention.
Vice President of Public Policy, Planned Parenthood Federation of America
Director, ACLU Washington Legislative Office
Director of U.S. Legal Program, Center for Reproductive Rights
cc: Hon. Jim Nussle
Office of Management and Budget
725 17th Street, NW
Washington, D.C. 20503
Fax: (202) 395-3888
Planned Parenthood is the nation’s leading provider and advocate of high-quality, affordable health care for women, men, and young people, as well as the nation’s largest provider of sex education. With more than 700 health centers across the country, Planned Parenthood organizations serve all patients with care and compassion, with respect and without judgment. Through health centers, programs in schools and communities, and online resources, Planned Parenthood is a trusted source of reliable health information that allows people to make informed health decisions. We do all this because we care passionately about helping people lead healthier lives.
May 14, 2014