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Waxman’s Letter to HHS Says Proposed Conscience Rule Violates Federal Policy

Representative Henry Waxman (D-California), Chair of the House of Representatives Oversight and Government Reform Committee, sent a letter to the Department of Health and Human Services (HHS) on Monday, October 27 regarding the agency’s recently proposed “right of conscience” provisions.

HHS released the proposed regulations in August 2008 under the claim that they served to reinforce ‘right of conscience’ protections for health workers by upholding their religious rights against discriminatory employment practices. However, members of the reproductive health community have voiced strong opposition to the regulations—stating that the policy stands to threaten patients’ access to a wide range of reproductive health and family planning services. In particular, the new regulations do not explicitly define abortion and may therefore leave the door open for health workers to apply their own definition of abortion to certain health services. Thus the proposed regulations make it possible for health workers to deny patients access to such common contraceptives as the birth control pill.[1]

In particular, Waxman argues that the proposed regulations violate a federal policy requiring “interagency coordination and review.” An executive order issued in 1993 requires federal agencies to “avoid regulations that are consistent, incompatible, or duplicative with its other regulations or those of other federal agencies.” At issue is the fact that the proposed HHS regulations overlap with an Equal Employment Opportunity Commission (EEOC) policy, which protects workers’ religious rights.[2]

Based on the executive order Waxman’s letter mentions, federal agencies have to consult with the Office of Management and Budget (OMB) and the Office of Information and Regulatory Affairs to ensure that the policies of different agencies are coordinated. Waxman’s letter communicated to HHS that they failed to conduct the consultation process. “If there had been consultation with the EEOC as required by the executive order,” Waxman wrote, “the proposal submitted for public comment might have been significantly different—or might not have been issued at all.”[3]

HHS is still involved in a review process of the proposed regulations, and has not submitted a finalized policy. Waxman’s letter requested that the agency submit documentation of its consultation with the OMB, or a description of how the agency plans to remedy the violation with the EEOC before the new regulations are finalized. HHS is currently reviewing Waxman’s letter.[4] SIECUS is not aware of any further action taken by HHS to respond to the letter.

[2] “Waxman Sends Letter to HHS Stating That Conscience Rule Issued in Violation of Federal Policy,” National Partnership for Women and Families, Daily Women’s Health Policy Report , 29 October 2009, accessed 14 November 2008, <>.
[3] Ibid.
[4] A BNA Health Care Daily Report released Tuesday, October 28 reported that an HHS spokesperson said the agency was reviewing the letter.