Good News: The Biden Administration Finalized New Refusal Rules

There are a number of provisions in federal statutes that allow providers and hospitals the ability to refuse to provide care, or the information a patient may need to get care elsewhere, if the provider objects on moral or religious grounds. Katie O’Connor, Director of Federal Abortion Policy at the National Women’s Law Center, sits down to talk with us about the history of refusal statutes and rules, what it looks like to be a patient up against refusals, and the new refusal rules out of the Biden administration.

The Trump administration finalized rules that defined refusals and greatly expanded the amount of people in the healthcare systems that could potentially refuse care. The Biden administration’s new rules around refusals rescind the Trump rules, taking us back to the refusal of care statutes with no extended reach. Ideally, and in congruence with this, stripping the Weldon amendment from the Labor HHS appropriations bill and repealing the Hyde amendment would expand access to abortion. 

Links from this episode

National Women’s Law Center on Facebook
National Women’s Law Center on Twitter
NWLC: The Weldon Amendment: A Poison Pill Rider For Abortion Access
NWLC: The Hyde Amendment Creates An Unacceptable Barrier To Women Getting Abortions
Plan C
Abortionfinder.org
Ineedana.com
Repro Legal Helpline
Repro Legal Defense Fund
Digital Defense Fund

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Transcript

Jennie: Welcome to rePROs Fight Back, a podcast on all things related to sexual and reproductive health, rights, and justice. [music intro]

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Hey rePROs! How's everybody doing? I'm your host Jennie Wetter, and my pronouns are she/her. So y'all, you know, I told you I was recording early for the last episode you heard. So, had that four day weekend and it was so lovely and it snowed at the end, which was delightful. We hadn't had real snow here in DC...I don't know, I don't think we had any last year. So it's been at least two years. And it was just so lovely to watch the snow fall, but that meant I spent the end of the long weekend living my best cozy life. It was so nice, like, curled up under the covers in bed, watching it snow with a good book. You know, there was hot chocolate to be had. There was TV watched, there was knitting done. I baked an amazing gingerbread bundt cake. Basically y'all I just was living my absolute cozy best life, and I have no regrets. It was so wonderful. It made me so happy. Just snuggled up with the kitties and yeah, watching the beautiful snow. It was really nice. I could use more weekends like that. I mean, four day weekends. What's not to love? Let's see, what else? Ooh, ooh, ooh. There's a new podcast that I just found and listened to actually. I didn't just find it, it just came out and no one's paying me to say this or anything. It's something I truly, truly love and think y'all will love. It's the A Files: A Secret History of Abortion. And y'all, it's by two absolutely amazing abortion advocates. Renee Bracey Sherman and Regina Mahone. Y'all, you'll love it. Like, make sure to check it out. I think it's on all your podcast platforms. I'm listening to it on Apple podcast, so I assume it's like everywhere else, but yeah, definitely check it out. It's really, really good. And they are also writing a book that I just- I can't wait. So, I am so excited to listen to this series as it comes out. And yeah, I hope you like it too. Like, I know I will learn a lot because I always learn so much, particularly from Renee, but also Regina as well. So, yeah, make sure to check it out because I'm loving it so far. When I'm recording this, there are two episodes out and I loved both of them. So, such a good podcast. I think with that, maybe we'll just go to this week's episode. I am really excited to talk to Katie O'Connor at the National Women's Law Center about a new refusal rule from the Biden administration, so I'm very excited to talk about it. So, let's go to this week's episode with Katie. Hi Katie! Thank you so much for being here today.

Katie: Hi, Jennie. Thanks for having me.

Jennie: I'm so excited to talk to you about the Biden admin's new refusal rule. But I kind of feel like before we get started, one, I was just gonna jump into the interview and skip introductions and, like, let's not do that. So, do you wanna introduce yourself really quick and include your pronouns?

Katie: Sure. So, I'm Katie O'Connor. I'm Director of Federal Abortion Policy at the National Women's Law Center, and I use she/her pronouns, and I'm excited to be here.

Jennie: I can tell when I get excited because I forget intros and just, like, let's just start talking about it. Okay. But before we can talk about what happens, I kind of think, we haven't talked about refusals on the podcast in a while, so I think we need to like, take a couple steps back and start with: what are we talking about when we talk about refusal rules? What are they?

Katie: It's alright. I'm gonna walk you through a short history of refusal rules, and also I think I'm gonna call these refusal statutes because we'll get to the rules later.

Jennie: Great.

Katie: So, there are a number of provisions in federal statutes that allow individual providers, hospitals, and healthcare systems to refuse to provide care or even the information a patient might need to get care elsewhere if the provider objects to that care on moral or religious grounds. Unsurprisingly, this all started right after Roe v. Wade. So, in 1973, Congress passed—as part of a bigger bill—what we called the Church Amendment. And it was our first refusal of care statute. And what the Church Amendment provides is that within healthcare entities that receive federal funding, nobody can be forced to perform or assist in the performance of abortion or a sterilization procedure. And no one can be discriminated against because of their willingness or unwillingness to perform an abortion or sterilization procedure. Over the next five decades, refusals expanded beyond that in federal statute. So, there was an amendment called the Coats Amendment that prohibits discrimination against educational programs that refuse to train medical students in abortion care or against discrimination against someone who chooses a program that refuses to train in abortion care. A little bit later, there was a provision that allows a Medicare or Medicaid managed care plan to refuse to pay providers for counseling or referring for abortion. So, that provision didn't prevent providers from counseling or referring, but it did say Medicare and Medicaid plans don't have to have to pay for that service. But the big one came a few years later. Actually it was in 2004 that we got the Weldon Amendment. This is actually not a permanent provision of federal law, but it has been included as a rider in appropriations bills for the Labor and Health and Human Services bills since 2004. So, the Weldon Amendment expanded the church amendment in two kind of significant ways. First of all it expanded its cover refusals, not just from medical professionals. So, the Church Amendment was meant to prevent doctors and nurses from being forced to provide abortion care. But the Weldon Amendment expands that to hospitals, HMOs, health insurers, other healthcare facilities and entities, sort of, et cetera, et cetera. And the other big way that the Weldon Amendment expanded the statutes that provide for refusals of care is that it prevents federal funding to any program that discriminates against participants who refuse to provide, pay for, cover, or refer for abortions. So, this was the first time that federal law explicitly said, by the way, we'll cut off your funding if you force providers to provide abortions. And then I think nominally the Affordable Care Act also included its own refusal provisions. They didn't expand on what was already in federal law significantly, but it's important to know that they're in there. So, that's sort of the history of refusal of care statutes.

Jennie: So, what's that look like if I'm, like, the patient in this trying to access care?

Katie: You know, what's really pernicious about these is that it also doesn't require providers to tell you what they're going to provide and what they're not going to provide. So you might show up at a hospital needing miscarriage treatment and find out that that hospital does not provide it and they will send you to a different hospital. That is what happens. So, in the vast majority of cases, they outright refuse and you were sent to a new hospital. And it's worth mentioning that especially because a lot of our hospital systems are now operated by the Catholic Church in particular. The Catholic church has its own guidelines for what those hospitals can provide. So, we're able to identify which hospitals at least are Catholic affiliated or religious affiliated for the most part. But we still have only vague ideas about which hospitals are gonna refuse which kind of care.

Jennie: Yeah, I mean, and that's also the thing with, like, Catholic hospitals, right? With all of the, like, mergers and stuff, you may not actually know that you're at a Catholic hospital until you aren't able to get the care you need. And even then you might not know. Like, I've definitely had friends start to tell me stories of somebody who was pregnant and was gonna have to have a C-section and wanted to get their tubes tied at the same time and the hospital giving them saying like, "oh, we, you know, we can't do it. It's not really the right choice" right then. And I'm like, I'm gonna stop you right there because I already know where this is going. And it's a Catholic hospital, right?

Katie: Yeah, it's true. The mergers have, I mean, it's true that the mergers have made it a lot more difficult to even know if you're in a Catholic hospital. You know, it's funny, I was recently at Georgetown and my wife was like, why is there a picture of the pope on the wall? And I was like, oh yeah, that's because this is, you know, so I mean, like it's, I think it's like one in six hospitals is affiliated with the Catholic church. So, yeah, I mean it's, it's pretty widespread. And I do think that the lack of transparency is also really problematic because people, especially in emergency situations where they need this kind of healthcare, they don't know.

Jennie: Okay, I'll get off my, like, Catholic hospital special. That's always like a special place where I can dig deep because it really makes me mad about people not knowing when they're going to get the care, how that might impact the care they are getting. Okay. So, we talked a little bit about the history. So, under the Trump administration things expanded even more. Can you tell us a little bit about what happened under the Trump administration?

Katie: It wasn't until the George W. Bush administration that the federal government tried to promulgate rules to enforce the refusal of care statutes. And so, George W. Bush’s Health and Human Services Administration did issue rules shortly before the Bush administration ended. But incidentally, those rules were meant to go into effect on the day of Obama's first inauguration. So, essentially those rules never went into effect, but it's my understanding that they were similar in nature to what we got under the Trump administration. However, Obama was elected, he came in, rescinded those rules and issued some rules of his own that didn't go very far above or beyond what was already in federal statute. And then Trump was elected and came into office. So, in January of 2018 to coincide with the annual anti-abortion march that we always have here in Washington DC the Trump administration proposed a set of rules that would define refusal of care and seek to enforce violations of refusals of care. And so, in May of 2019, the Trump administration finalized the rules on the refusal of care to coincide with the National Day of Prayer. There were a number of ways where those rules did go above and beyond what was already in statute in really harmful ways. One of those ways is that these rules clearly would've gone beyond just abortion, which had always been understood as the narrow context in which refusals of care applied. The rules could have reached and probably would've reached gender affirming care, contraception, HIV and STI screenings, fertility care, and the list probably could have gone on and on. The other way that these rules really expanded the reach of refusals of care are that they would've allowed virtually anyone in sort of the chain of events that lead to healthcare to refuse to provide that portion of the care. And so, the Trump administration actually conceded that these rules would've allowed an ambulance driver—should he learn that the person in the back of his ambulance needed abortion care to stabilize—that ambulance driver could have refused to drive the ambulance to the hospital. It could have allowed schedulers and secretaries to refuse to do their basic jobs if those jobs were in any way related to the provision of healthcare, to which they objected. And I think those are the two big ways that the Trump administration really blew the rules up. But it's worth noting that these rules would've also prohibited an employer from asking a prospective employee about whether they were willing to do critical aspects of the job. So, the most sort of tangible example there is: Planned Parenthood wouldn't have been able to ask, you know, someone they were hiring, whether they were willing to provide abortion care or contraceptive care. And they wouldn't be able to ask that in the interview, and they wouldn't be able to fire someone for refusing to care, refusing to provide and do basic elements of the job. So, those are the Trump rules. That's what we got in May of 2018.

Jennie: I- with as slow as rule-making can often be, I forgot that timeline is really short. It went from January to May.

Katie: It is. Now, we actually challenged the rules shortly thereafter. So, we represented—the National Women's Law Center represented—Planned Parenthood. We worked with Democracy Forward and a law firm, Covington & Burlington, to challenge the rules. ACLU also challenged the rules on behalf of the National Family Planning and Reproductive Health Association. And there were also 19 states that sued over the rules. We won at the district court, so the rules were thrown out at the district court. That decision was appealed at the Second Circuit, but the Second Circuit at that point put it on hold because the Biden administration had made clear that they were gonna issue their own rules and essentially rescind what the Trump administration has done.

Jennie: Okay. So, that brings us up to what happened...was it this week? Man, I've lost all grasp of time. Very recently. When y'all are hearing this, it was at least a week ago since this'll come out next week, the Biden administration's new rules around refusals. Can we talk a little bit about what are in these new rules?

Katie: Yes. So first of all, I'll say this is a cause to celebrate. I feel like we don't have a lot of those-

Jennie: Yes.

Katie: -these days. So, we have absolutely been celebrating.You know, for the most part. So, the Biden administration proposed new rules in January of 2023, and they were finalized last week. In large part, these rules rescind the Trump rules, so we go back to what we had during the Obama administration, which is essentially just the refusal of care statutes in their original form with no extended reach. There was, I will say there was one part that we were a little disappointed about. One of the things that Trump included in his rule was a list of like 30 federal statutes that could be used to justify the refusal of care rules. We really hope that Biden would tear that back down to the amendments that you and I talked about at the beginning of the podcast. And that didn't happen. But aside from that, this is an unqualified win. I mean, it really is a rescission of everything that the Trump administration wanted to do. And really setting the clock back to the Obama administration where it was just, like, the basic elements of the statutes.

Jennie: It's so nice to have a win and just, like, it is good news. It is ensuring that expanded restrictions on care—or expanded refusal, sorry—isn't in effect anymore, which is absolutely a win. But I would also be a terrible advocate if it wasn't like, okay, what's next? What else do we need to happen to ensure people are able to access care?

Katie: Yeah, for sure. So, I have two ideas. One is, like, we talked about the Weldon Amendment at the beginning of this; we have been asking the administration to exclude the Weldon Amendment from its budget for years. And we will continue doing that. And so, one of the things we absolutely have to do and can do in the immediate future is get the Weldon Amendment stripped from the appropriations bill for Labor, Health, and Human Services. That's something that could happen as soon as Congress and the White House have the will to do it. So, we've been pushing for the White House to suggest the budget that doesn't include the Weldon Amendment, and we've absolutely been working with members of Congress to strip the Weldon Amendment from the appropriations bills. And so, we'll keep doing that work as often as we can. But I feel like with talking the Weldon Amendment, we have to talk about the Hyde Amendment too because the two go hand in hand. And so, you know, we were thrilled that the Biden administration did propose a budget that excluded the Hyde Amendment. For those who don't know, the Hyde Amendment is what prevents states and cities and the federal government from funding abortion care in the United States. It's obviously, like, compounding the problems we have with disproportionate access. And especially in these post-Dobbs days, it’s critical that we get rid of the Hyde Amendment. So, I think pushing for the White House and Congress to get rid of both of those amendments, to put abortion on, you know, the level with other healthcare is a really noble goal. And we hope that everybody's gonna fight for that.

Jennie: I mean, it just seems so basic. Like, treat it like the healthcare it is and not this separate thing that has to be treated differently and stigmatized and all this additional harm layered into it.

Katie: Yeah, it's true. You know, another thing that we're working on—and sorry if I'm going a little off script here—but you know, the Supreme Court has decided to hear this case on the Emergency Medical Treatment and Labor Act. I know you talked with Jessica Pieklo about it recently. And that is another way where we as a culture are defining abortion as something that's not...that's different from regular healthcare and what we know, what we have always known. But what is much more in the spotlight since the Dobbs decision, is that it's absolutely part of healthcare. And so, that's why we're getting so many stories out of Texas and Missouri and Kentucky about people who need these basic forms of healthcare and are being turned away from hospitals and are risking their lives and their health and their future fertility because they're getting refused the care that they need. So, I think we have to be thinking about all the ways that we can stop treating abortion differently than we treat every other form of healthcare in this country.

Jennie: Yeah, and it's always important, like, it's important to talk about these things individually because each individual thing is really important, right? These refusal rules are really important, but they are not in a silo. You're having to deal with all of the other abortion restrictions and other repro restrictions that are tacked onto this in able to access care. And it just creates this really complicated web of hoops you need to jump through—I know, sorry, y'all very mixed metaphors—but of all these things you need to go to be able to access what at the fundamental level is just basic healthcare.

Katie: That's exactly right. I mean, I think there's a climate of fear and confusion among both patients and doctors at this point. I mean, for patients, you don't know if you're going to a Catholic hospital that will refuse the care you need. You don't know necessarily which laws are being applied. But the same goes for doctors. I mean, you know, in some states you have multiple abortion bans sort of in effect in overlapping ways that's confusing on its own. And then you have refusals of care. So, I do think that, like, part of the problem now is that culture of fear and confusion. I also think that that culture of fear and confusion is very much intentional on the anti-abortion part-

Jennie: Absolutely.

Katie: -anti-abortion advocacy's part. But trying to clarify and get clarity on what rules are applying and where I think would also go a long way towards restoring some access to people.

Jennie: Oh yeah, no, the confusion is absolutely intentional. Like, thinking of before there was like the Dobbs decision, like where you would have states passing a six-week ban that was clearly not gonna go into effect, but there would be all these headlines about this new six-week ban that was just passed and dah dah. So, people thought they couldn't go get care. And you just see all of these ways where all of these different laws are passed and trying to confuse people and make it hard and, like getting healthcare is hard enough as it is. And so, when people are trying to make it additionally harder and more confusing, it just makes it really hard for people to try and access abortion care.

Katie: Yeah. So I think, you know, we really hope that the Supreme Court is gonna rule in a way, in this Emergency Medical Treatment and Labor Act—we call it EMTALA for short—that makes clear what federal law requires of hospitals to at least have that baseline understanding about what is required to stabilize a patient, a patient who's in, you know, a critical medical emergency. So, that is at least one area of potential hope this year.

Jennie: I'm feeling really dark about it, but maybe there's hope. I hope so. I hope they clarify it in a good way.

Katie: Good way. I mean, I think on the hopeful side, we have seen that, you know, Dobbs was devastating. We all know that we don't have to repeat it, although it feels like we should, but the silver lining is that it really taught us what we already know, which is that abortion access is actually very popular in red states and in blue states among Republicans and among Democrats. And so, we just have to keep finding ways to harness that energy to restore access or at least protect access wherever we can. You know, I think one silver lining for me is doing, you know, I do a lot of congressional advocacy, and before Dobbs, when everyone could just rely on Roe v. Wade, nobody wanted to talk about abortion because they thought it was something controversial because they thought it would, you know, scare off the moderates. And now we're finally in a world where people are talking openly about abortion, we are hearing people's stories and we're hearing, you know, from Congress, we're getting all kinds of energy to actually do something. And that would've been unthinkable when Roe v. Wade was still on the books, you know?

Jennie: That's true. And I, I do think of like the hope and the possibility of building it back better, right? 'Cause even with Roe in place, abortion access was not good. So hopefully this means we're building back in a much better, more accessible way for everyone.

Katie: Yeah, I think that's right. I mean, it feels really daunting because we know how many decades it took for Roe v. Wade to happen and for abortion to be really accessible in this country. And it's, well, I was gonna say it's a little heartbreaking to see all of that sort of fall apart so quickly, and I think that's true, but to your earlier point, like, it's also in ways not true. Like, abortion access has been falling apart, being chipped away at for, you know, 15 years especially. But to see it all accelerated and to see just like mass closures of clinics immediately following Dobbs is really upsetting. But it is an opportunity for us to think about what we really want out of abortion access and what it really means to have reproductive rights and reproductive justice in this country. So, it's daunting because it's gonna take another couple of decades, you know? But at least we can be thinking about what our values really are and, and what is really gonna serve the people who need this kind of care in this country.

Jennie: And to celebrate the wins when we get them.

Katie: And to celebrate the wins when we get them.

Jennie: Like a new refusal rule.

Katie: Yes.

Jennie: Okay. So, I always like to end thinking about: what can the audience do? So, like, what kind of actions can the audience take around refusals right now?

Katie: I think the best target for us is the Weldon Amendment. So, I can't point to anything immediately, but I'm sure that, like, there are plenty of organizations including ours, that ask people to sign on to letters to Congress and to make calls to Congress and to the White House to get rid of the Weldon Amendment. This happens every year. So, it's something that we, it's not one and done, it's an ongoing campaign, but learn about the Weldon Amendment and the Hyde Amendment and, and get involved in letter campaigns, stuff like that. And, you know, that's one thing we can do. We got the Biden administration to get rid of the Hyde Amendment in their budget. We can do it with the Weldon Amendment, too. This is a long campaign, but it's one worth being on.

Jennie: Well, Katie, thank you so much for being here. It was lovely talking to you.

Katie: Jennie, thank you so much for having me.

Jennie: Okay, y'all, I hope you enjoyed my conversation with Katie. It was so great to get to talk to her about the new refusal rule out of the Biden administration and honestly just refusal rules in general. It's been a while since we've talked about them, so it was good to dig into refusals for a little bit. I hope you enjoyed it. And with that, I'll see y'all next week. [music outro] If you have any questions, comments, or topics you would like us to cover, always feel free to shoot me an email. You can reach me at jennie@reprosfightback.com or you can find us on social media. We're at @RePROsFightBack on Facebook and Twitter or @reprosfb on Instagram. If you love our podcast and wanna make sure more people find it, take the time to rate and review us on your favorite podcast platform. Or if you wanna make sure to support the podcast, you can also donate on our website at reprofightback.com. Thanks all!