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Bush-Era Abortion Rules Face Possible Reversal
By Laura Meckler   |  Dec 20, 2008

WASHINGTON — The outgoing Bush administration this week will finalize a regulation establishing a “right of conscience” allowing medical staff to refuse to participate in any practice they object to on moral grounds, including abortion but possibly birth control and other health care as well.

In transition offices across town, officials in the incoming Obama administration have begun considering how and when to undo it.

The regulation is one of a swath of abortion and other reproductive-health issues under review by the Obama team, which is preparing to reverse a variety of Bush measures, according to officials close to the transition. The review is part of a sweeping scrutiny of Bush-era legislation and regulation on issues across the federal government, from environmental and labor rules to defense spending.

On abortion and related matters, action is expected early on executive, regulatory, budgetary and legislative fronts.

Decisions that the new administration will weigh include: whether to cut funding for sexual abstinence programs; whether to increase funding for comprehensive sex education programs that include discussion of birth control; whether to allow federal health plans to pay for abortions; and whether to overturn regulations such as one that makes fetuses eligible for health-care coverage under the Children’s Health Insurance Program.

Women’s health advocates are also pushing for a change in rules that would lower the cost of birth control at college health clinics.

Obama aides will have to settle many of these questions in issuing their first budget in February.

“We have a lot of work to do to fix the damage the Bush administration has done,” said Nancy Keenan, president of NARAL Pro-Choice America.

As one of his first actions, Mr. Obama is likely to issue an executive order lifting President George W. Bush’s restrictions on funding for research using embryonic stem cells, a move with bipartisan support.

Women’s health advocates also expect early action on the “global gag rule,” which bars foreign organizations from using their own money for abortion services or advocacy if they accept U.S. aid for family planning. This policy was instituted by President Ronald Reagan, immediately overturned by President Bill Clinton and then reinstated by Mr. Bush.

Mr. Obama is also expected to restore federal funding for family planning to the United Nations Population Fund soon after taking office. This policy also has gone back and forth with control of the White House, with Republicans arguing that the U.N. agency supports coercive abortions because of its work in China with its one-child policy, and Democrats saying that the agency doesn’t.

Messrs. Clinton and Bush took action on those two issues in the opening days of their administrations. It isn’t clear whether Mr. Obama will follow suit. He has suggested that he wants to find middle ground on abortion-related issues, and some Democrats worry about the politics of making abortion policy one of his opening moves.

As they face Democrat-controlled Washington, antiabortion activists are gearing up to fight the Freedom of Choice Act, or FOCA, which would codify Roe v. Wade into federal law. Mr. Obama said last year that he would sign the bill. Depending on how it is interpreted, the bill could overturn state laws regulating abortion, such as parental notification and mandatory waiting periods.

“Our No. 1 concern would be the FOCA bill,” said Connie Mackey, senior vice president of Family Research Council Action, a conservative group that focuses on social issues. “We have to appeal directly to the American public.”

The opponents of this legislation appear more eager for a debate over it than the proponents do, perhaps knowing it is a strong way to rally their supporters early in the administration.

While many abortion-rights supporters would like to see Congress pass FOCA, their advocates in Washington have concluded that there aren’t enough votes in Congress and that it isn’t politically smart to push such a divisive measure. A coalition of nearly 60 liberal and women’s groups submitted a list of 15 requests for action in the Obama administration’s first 100 days, and FOCA isn’t on the list.

“We’re going to be smart and strategic about our policy agenda to bring people together to make progress for women’s health,” said Cecile Richards, president of Planned Parenthood Federation of America. “The Freedom of Choice Act is very important…but we have a long list of things to get done that I think can address problems immediately that women are facing, that are really immediate concerns.”

Among them is the “right of conscience” regulation that is expected to be published this week. It will take effect 30 days after being issued. That means that if the Bush administration issues the regulation this week, it will become final before Mr. Obama’s inauguration on Jan. 20, and his administration won’t be able to undo it easily.

For decades, federal law has said that doctors and nurses can’t be compelled to perform abortions. The new regulation broadens that to make clear that all health-care workers may refuse to provide information, such as a referral, to patients looking for an abortion. The Department of Health and Human Services estimates the regulation would affect 584,000 hospitals, doctor’s offices, pharmacies and other entities.

Advocates on both sides of the issue have interpreted the rule as also protecting workers who refuse to participate in providing birth control or other care they don’t support. The rule could be blocked by Congress, or Health and Human Services could begin the laborious process of issuing a new regulation reversing course. Officials close to the transition have signaled that they intend to begin the regulatory process anew.