LOPEZ: What is the debate about HHS conscience regulations, and where does it stand?
NELSON: The provider-conscience regulations were promulgated in December 2008 by the Bush administration to bolster existing statutory conscience-clause provisions. Their adoption was motivated in part by a November 2007 opinion issued by the American College of Obstetricians and Gynecologists (ACOG) requiring doctors who refuse to perform abortions to refer patients to abortion providers. This was followed by regulations issued by the American Board of Obstetricians and Gynecologists that appeared to link board recertification to compliance with the ACOG referral requirement. The provider-conscience regulations were designed to ensure compliance with statutory bans on discrimination against health-care providers with a conscientious objection to specific medical procedures, e.g., abortions and sterilizations. On March 10, 2009, the Obama administration published a notice in the Federal Register announcing its intention to rescind the provider-conscience regulations in their entirety and seeking comments “to aid our consideration of the many complex questions surrounding the issue and the need for regulation in this area.” This notice mentioned concerns about denials of access to procedures, particularly in rural areas.
LOPEZ: Do Catholic concerns about sexual-assault guidelines and mandates mean we care more about the unborn than about women?
NELSON: As seen in the ERDs, Catholic hospitals are required to protect both the victims of sexual assault and the unborn. Directive 36 of the 2001 ERDs permits the administration of emergency contraception by Catholic institutions to rape victims where there is “no evidence that conception has occurred already.” Permissible medications include those “that would prevent ovulation, sperm capicitation, or fertilization.” But it is not permissible to administer medications or treatments that “have as their purpose or direct effect the removal or destruction, or interference with implantation of, a fertilized ovum.”
There has been controversy over whether Plan B, the emergency contraceptive available in the United States, prevents implantation of a fertilized ovum in the uterus. There has also been some controversy over whether Catholic hospitals are required under Directive 36 to administer an ovulation test to sexual-assault victims before giving an anovulant medication. If such a test indicates that ovulation is under way or has already occurred, then arguably it is not morally permissible for a Catholic hospital to administer a medication with a potential abortifacient effect. In response to the adoption of a law in Connecticut that required Catholic hospitals to provide emergency contraception to rape victims, the Connecticut bishops issued a statement indicating that the Church had not authoritatively resolved the question of the morality of the administration of an emergency contraceptive to the victim of a sexual assault without prior administration of an ovulation test. Accordingly, they concluded that it was morally licit for Catholic institutions to comply with the Connecticut law. In response, the National Catholic Bioethics Center issued a statement opining that there was “virtual unanimity that an ovulation test should be administered before giving anovulant medication.” In addition, in September 2008, the Vatican issued an instruction Dignitas Personae noting the possible abortifacient effect of emergency contraceptives.
LOPEZ: Should there be an emergency-contraception exception — for those who aren’t Catholic, at least?
NELSON: Under the principle of self-defense, the Church has provided for an exception to the usual prohibition on contraception in order to allow victims of sexual assault to use a contraceptive to prevent fertilization. There seems to be, however, a developing consensus that administration of an ovulation test is required prior to the administration of an emergency contraceptive in order to prevent the possible destruction of a fertilized ovum. Moreover, in Dignitas Personae it was noted “that anyone who seeks to prevent the implantation of an embryo which may possibly have been conceived and who therefore either requests or prescribes such a pharmaceutical, generally intends abortion.” The prohibition on the provision of direct abortions is not based on Catholic doctrine, but rather on a precept of the natural law binding on all persons. Accordingly, it would not make sense for the Church to allow application of different standards to Catholics and non-Catholics on this issue.