Federal Ambiguity on Abortion Vs. Contraception

William Saletan of Slate has recently posted a couple of informative updates on the Bush administration's attempt (or lack thereof) to define abortion.

The context is the proposed new law that would grant special protections for religious health care workers who chose not to provide abortion care or information to patients out of reasons of "conscience". In effect, the new law would forbid employers from firing such workers and enforce this by threatening the employer with loss of federal funding.

Leaving apart the fact that such issues should be settled by private contract (as nicely argued by Thomas Bowden of the Ayn Rand Center for Individual Rights in their recent press release, "Let Doctors Protect Conscience by Contract"), this proposed law has spawned a controversy over what exactly constitutes an "abortion" in the eyes of the federal government.

As Saletan documents in his first piece from 8/28/2008, "Contraceptive Fudge", the initial definition was:

...[A]ny of the various procedures -- including the prescription, dispensing and administration of any drug or the performance of any procedure or any other action -- that results in the termination of the life of a human being in utero between conception and natural birth, whether before or after implantation

However, this was dropped after protest from physicians and reproductive rights advocates who correctly noted that this would include some forms of birth control that are not generally regarded as "abortion" -- including IUDs and sometimes birth control pills.

Saletan also points out that a number of religious advocacy groups have already argued that "hormonal contraception is abortion", including Pharmacists for Life International, Christian Legal Society, and Concerned Women for America, and that the current definition still leaves the door open for this interpretation.

When others have asked Health and Human Services Secretary Michael Leavitt to clarify this point, he has been cagey. In Saleton's second piece from 8/29/2008, "Contraceptive Fudge: Addendum", he notes the following statement by Leavitt:

But when pressed about whether the regulation would protect health-care workers who consider birth control pills, Plan B and other forms of contraception to be equivalent to abortion, Leavitt said: "This regulation does not seek to resolve any ambiguity in that area. It focuses on abortion and focuses on physicians' conscience in relation to that."

Secretary Leavitt is trying to have it both ways. While claiming this would not "change a patient's right to a legal procedure", his deliberate characterization of this issue as one of "ambiguity" is leaving the door open for the conflation of popular forms of birth control with abortion, and thus preparing the way for future restrictions of birth control in the name of restricting abortion.

Saletan also explicitly supports the private contract approach to the "conscience" issue, and I applaud his principled stance:

As a pharmacist, you have every right to refuse to fill contraceptive prescriptions. But your customers have every right to boycott your store, and your employer has every right to fire you. If you don't like your employer's policy, open your own pharmacy.

He also notes that federal government is soliciting citizens' opinions on this issue. You can e-mail them at: consciencecomment@hhs.gov.

Here's a slightly edited version of the comment I sent them:

The US government needs to be completely clear and unambiguous as to whether it regards standard forms of contraception such as birth control pills and IUDs as forms of "abortion", if they result in the expulsion of an egg that has already been fertilized but not yet undergone implantation.

Rather than fudging this issue and calling it an "ambiguity", it must let practicing physicians such as myself know whether restrictions on abortion will also entail restrictions on these other forms of contraception.

If the Bush administration wants to call those "abortions", then please be up front about it and say so. If the administration does not consider those to be "abortions", then say so and clear the air. To straddle the fence does a grave disservice to millions of men and women, and also leads to the concern that there is a hidden agenda amongst some in the government to also include restrictions on these forms of birth control when they propose future restrictions on abortions.

Paul Hsieh, MD

You too can let the Feds know what you think!