It's a distasteful political tradition that's honored far too often by outgoing presidential administrations. With the clock ticking on time in office, a flurry of so-called "midnight regulations" are put in place in a last-ditch effort to put a political stamp on the nation. "Midnight" is an apt descriptor in more than one way. Not only is time running out, but these new policies often are implemented in bureaucratic darkness. Dense but powerful language is inserted into the nation's regulatory framework with little warning, leaving the task of rooting out bad new policy to the incoming administration.
Fortunately, one of the most troubling midnight regulations being imposed by the Bush administration is far from a secret. Thanks to opposition from groups such as the American Medical Association, the American Nurses Association and Planned Parenthood, there's been a glaring spotlight on a clumsy new policy from the U.S. Department of Health and Human Services that clearly targets women's access to abortion and birth control. More than 200,000 people have registered their concerns with the agency since last summer. That the enactment process has been so high-profile is the only good thing that can be said about the new rule, which is slated to take effect Jan. 20, the same day President-elect Barack Obama is sworn in.
The new rule is ostensibly designed to safeguard medical staff from discrimination if they refuse to participate in abortion or sterilization procedures and thus, according to HHS officials, spur people with a wider array of beliefs to enter medical professions. But tough federal laws have been in place for decades to protect medical staff. In fact, they work so well that HHS officials defending the rule don't cite one case of discrimination that existing laws failed to prevent.
Wade into the dense, Federal Register bureaucratese outlining the rule and it becomes clear what this rule really is: a policy nod to abortion extremists. When it takes effect next month, it will allow their politics entry into exam rooms by vastly expanding the opportunities for medical staff to refuse abortion care or information. Of particular concern is that the rule's overly broad abortion language leaves open the possibility that it could include contraception that may interfere with a fertilized egg's implantation. These medications are often a critical component of emergency care for rape victims. During the comment period for the new rule, HHS officials were petitioned to clarify the rule's language on this type of birth control. The agency declined to do so in a 31-page statement on the finalized rule that was released Dec. 19. Across the nation, there are valid concerns that this loose language will allow providers to circumvent existing state laws requiring that rape victims have emergency contraception information and access. Minnesota Attorney General Lori Swanson has already concluded the state's 2007 law could be undermined.
In addition, the finalized rule's language is muddy enough in other places that some medical organizations now worry that providers could also invoke their beliefs to decline care or information involving vaccinations, blood transfusions or pain relief for dying cancer patients.
The nation's leading medical organizations have objected to this politically motivated policy for months. They've been joined by at least eight governors and a coalition of 13 attorneys general; four more AGs, including Minnesota's, have registered concerns individually. The Obama administration has significant challenges as it takes office, but striking down this new rule needs to be a priority. Politics don't belong in the exam room.