President George W Bush seems determined to leave his footprints firmly etched. First it was allowing mountain top mining. And now a "conscience protection" rule for the healthcare industry, enabling doctors to opt out of medical care they find morally objectionable.
The new rule, issued Thursday, is also applicable to hospitals, and even receptionists and volunteers in medical experiments.
The right-to-refuse rule includes abortion and other aspects of healthcare where moral concerns could arise, such as birth control, emergency contraception, in vitro fertilization, stem cell research and assisted suicide.
"This rule protects the right of medical providers to care for their patients in accord with their conscience," said outgoing Health and Human Services Secretary Mike Leavitt.
The rule, to be published today in the Federal Register, takes effect the day before President Bush leaves office.
It sets the stage for conflict in Barack Obama's incoming administration. In August, Obama criticized the rule proposal and said he was "committed to ensuring that the health and reproductive rights of women are protected."
The rule says providers - including hospitals, clinics, universities, pharmacies and doctor's offices - can be charged with discrimination if an employee is pressured to participate in care that is "contrary to their religious beliefs or moral convictions." Violators would lose their federal funds.
Critics of the rule said it was too broad and threatened the rights of patients.
They said they were particularly worried that patients would not be given full and complete information about their medical options. For example, they said, an antiabortion doctor in a federally funded clinic might refuse to tell a pregnant patient that her fetus had a severe abnormality. Or an emergency room worker might withhold from rape victims information about emergency contraception.
"This gives an open invitation to any doctor, nurse, receptionist, insurance plan or even hospital to refuse to provide information about birth control on the grounds that they believe contraception amounts to abortion," said lawyers for the National Women's Law Center.
Critics also cited the timing of the change.
"We are shocked that the Bush administration chose to finalize its midnight regulation and to take this parting shot at women's health and ignore patients' rights to receive critical healthcare services and information they deserve," said Cecile Richards, president of the Planned Parenthood Federation of America, in a statement. "We look forward to working with President-elect Obama and leaders in Congress to repeal this disastrous rule and expand patients' access to full healthcare information and services, not limit it."
An Obama spokesman, asked Thursday about the rule, said Obama "will review all 11th-hour regulations and will address them once he is president."
The Obama administration could revise the rule after he takes office Jan. 20, but the process would probably be months long.
A speedier option would be a congressional resolution rejecting the Bush administration's late rules. Democratic Reps. Louise M. Slaughter of New York and Diana DeGette of Colorado said Thursday that they would lead such an effort.
Decades ago - shortly after the Supreme Court in 1973 established a right to abortion - Congress adopted laws clarifying that no one was required to perform an abortion. Later laws declared that "no individual shall be required to perform or assist" in any medical research or procedure "contrary to his religious beliefs or moral convictions."
The new rule is needed to enforce the laws, Secretary Leavitt said. In a preamble to the rule, he expressed concern about "an environment in sectors of the healthcare field that is intolerant of individual objections to abortion or individual religious beliefs or moral convictions."
He said that the "doctor- patient relationship requires a balancing of interests" and that doctors have a duty only "to provide care that they are comfortable providing."
Health and Human Services said in its regulation: "To avoid potential conflicts from occurring, we strongly encourage early, open and respectful communications between providers and patients surrounding sensitive issues of healthcare, including issues of conscience."
The U.S. Conference of Catholic Bishops, the Christian Medical Assn. and Americans United for Life praised the new rules. "Individuals and institutions committed to healing should not be required to take the very human life that they are dedicated to protecting," said conference spokeswoman Deirdre McQuade.
Abortion-rights lawyers agreed that no doctor could be required to perform abortions, but they said Health and Human Services should require doctors and medical clinics either to give patients full medical information or to refer patients to someone who does.
"We are concerned because this involves low-income folks who rely on federally funded clinics. They don't have the option of shopping around for providers when they seek medical care," said lawyer Jennifer Dalvin of the ACLU Reproductive Freedom Project, writes David Savage in Los Angeles Times.