Department of Health and Human Services Regulations Open for Public Comment

RFP and WLO have drafted model comments for affiliates to submit to the Department of Health and Human Services (HHS) on the “Provider Conscience Regulation.” Submitting comments from each ACLU affiliate is part of the overall strategy to get a large volume of comments by the due date of September 25, 2008.

Background: On August 21, 2008, the Department of Health and Human Services (HHS) released proposed regulations that could seriously undermine access to basic reproductive health services, including birth control and abortion. The rule leaves open the possibility that – based on religious beliefs – health care providers, including hospitals, insurance companies, and pharmacies, could deny women access to birth control. This could undermine the state reproductive health laws that so many affiliates have supported over the years. In addition, the rule may permit health care providers to withhold information and counseling about a wide range of health care services, including birth control and abortion, without any consideration for the needs of patients. The proposed rule can be read here.

The Strategy: By submitting a massive number of comments, we will demonstrate to the public, HHS, and any future administration the diverse and strong opposition to the promulgation of this dangerous regulation. If every affiliate submits a comment and does additional outreach, we will ensure that HHS has heard from every state in the nation. Affiliate comments are a key part of a broader strategy that includes our Action Alert and web buttons, as well as reaching out to state officials, health care providers, and religious groups.

The Comments: Our model comments represent the unique ACLU voice that needs to be a part of this discussion. As an organization dedicated to the protection of religious liberty and reproductive freedom, the ACLU perspective is necessary when policymakers address situations where religious belief impacts decision making about reproductive health care. Through these comments, we can suggest solutions that, wherever possible, protect both the health care needs of women and the religious freedom of health care providers. Unfortunately, the proposed regulation seems to take patients out of the equation. Even if you have signed on to a coalition letter, please make sure that your affiliate submits an individual comment, both to boost volume and to make sure that the ACLU approach is considered.

The attached document contains model comments that can be used by each affiliate with a few simple edits. The easiest ways comments can be submitted to HHS are the following:

• Via the web at http://www.Regulations.gov and click on the link “Comment or Submission” and enter the keywords “provider conscience”. HHS prefers documents to be submitted in Microsoft Word format, although WordPerfect format is acceptable.
• Via email to consciencecomment@hhs.gov. HHS prefers documents to be submitted in Microsoft Word format, although WordPerfect format is acceptable.
• By regular mail, express mail, or overnight mail (you must submit one original and two copies) to Office of Public Health and Science, Department of Health and Human Services, Attention: Brenda Destro, Hubert H. Humphrey Building, 200 Independence Avenue, SW, Room 728E, Washington DC 20201.

Please make sure that “Provider Conscience Regulation” is included at the top of the page, as requested by HHS. Please email a copy of your final signed letter to dward@aclu.org and abohm@dcaclu.org.

Comments are due by September 25, 2008.

Outreach: In order to create the volume of comments that we need, outreach to the following communities is extremely important. Where possible, please encourage individual comments in addition to sign-on letters.

• Your members – If you haven’t already, please encourage your members and your web readers to submit comments. You can use ACLU web buttons (with and without our logo) for inclusion on your site. They link to an Action Alert that will be sent directly to HHS. We suggest including this language above or below it: “Use the ACLU Alert to Stop the Bush Administration's Attack on Women's Health.” This is an extremely popular feature: Within days, 32,000 people submitted comments via our action alert, making it the 5th most popular action alert in ACLU history!
• Your elected officials and state leaders – Comments from the Governor, Secretary/Commissioner of Health, state legislators, and other state leaders are also needed. The proposed regulations could interfere with access to many important reproductive health services and could be interpreted to undermine a number of state laws, including contraceptive equity laws, EC in the ER laws, and pharmacy access laws. As we receive letters from Governors and Attorneys General, we will share them with you. If you know of any letters from state officials and legislators in your state, please send copies of those letters to abohm@dcaclu.org.
• Health Care Providers – Comments from individual health care providers, associations, hospitals, pharmacies, local medical groups, groups advocating for health care for low income people, sexual assault groups.
• Religious leaders – Patients of all faiths and no faith need access to reproductive health care, and institutional religion stands on both sides of the debate.
• Other groups whose constituents may be affected by medical refusals – The regulation could affect more than just the reproductive rights community. Existing federal law already balances individual religious liberty and patients’ ability to access the health care services they need. Because we are concerned that the proposed regulation seeks to take patients needs out of this equation, it could allow, for example, doctors and nurses to refuse to comply with advance life directives without taking steps to ensure that the patient can receive the refused service elsewhere. Please feel free to reach out to nontraditional allies who may also be affected by this regulation.

Thank you: Thank you so much for helping us generate a massive outcry! Dahlia Ward will be in touch in the coming days to see what type of outreach is possible in your state. If you or your coalition partners are already working on this, please email Dahlia (dward@aclu.org) and fill her in. Thank you!

Remember: Comments due on September 25.

Vania Leveille
Legislative Counsel

Sondra Goldschein
Director of State Advocacy