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Trenton,
NJ -- Attorney General Anne Milgram today
joined Connecticut Attorney General Richard
Blumenthal and five other state attorneys
general in a lawsuit against the Bush Administration
to block a federal rule -- effective next
week -- that jeopardizes women’s access
to vital medical services, including birth
control.
Poised to take effect on the day of President-elect
Barack Obama’s inauguration, the Bush
Administration’s midnight regulation
undercuts state contraception laws and jeopardizes
billions of dollars in federal public health
money, the Attorney General said.
The lawsuit, lead by the state of Connecticut,
alleges that the Provider Conscience Rule
violates federal law, women’s rights
and states’ sovereign rights to enforce
their own laws. The other states joining
the lawsuit are Illinois, California, Massachusetts,
Rhode Island, and Oregon.
Milgram said, “The proposed rule fails
to balance the interests of patients and
health care providers and undermines our
state’s sovereign interests in ensuring
that our health care policies are implemented
fairly and uniformly. The regulation threatens
New Jersey’s ability to ensure that
women who are victims of sexual assault
have access to all treatment options to
which they are legally entitled.”
Last month, the U.S. Department of Health
and Human Services (HHS) approved a controversial
rule that HHS claimed was intended to protect
health care providers who refuse to participate
in any health care service due to religious
or moral objections -- including birth control.
However,
the lawsuit charges that the regulation
failed to define the key term “abortion”
and shrouded that term with new ambiguity,
which would allow individuals to define
it as encompassing many forms of contraception,
including emergency contraception. Instead,
the regulation encourages individuals to
employ their own definition of abortion
on an ad hoc basis, without providing advance
notice to the state, their employer or their
patients.
Late
last year, a group of 13 attorneys general
requested clarification of the scope of
the Provider Conscience Rule because it
was vague and failed to define the health
care procedures that may be withheld on
moral or religious grounds. But HHS disregarded
the requests for clarification and positioned
the rule for implementation Jan. 20.
Specifically,
today’s lawsuit alleges that the regulation
is illegal because:
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The Administrative Procedures Act (APA)
requires agencies promulgating regulations
to adequately address, with some precision,
the major comments it received from the
public during the formal rulemaking process.
Despite a request by attorneys general
of 13 states that HHS clarify what medical
procedures the proposed rule covered,
and the definition of abortion, HHS declined
to address this confusion.
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The Spending Clause of the U.S. Constitution
requires that, when Congress desired to
condition states’ receipt of federal
funds, it must do so unambiguously…enabling
the states to exercise their choice knowingly,
cognizant of the consequences of their
participation. Because the regulation
is vague, states are unsure what action
or conduct will result in the withholding
of federal funds. As a result, states
cannot make a knowing choice about whether
to comply with the regulation or forego
federal funding, jeopardizing billions
of dollars.
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The Spending Clause also prohibits Congress
from conditioning the receipt of federal
funds in such a way as to leave the states
with no practical alternative but to comply
with federal restrictions. The Provider
Conscience Regulation illegally forces
the states to either forego enforcement
of state laws or to enforce such laws
at the risk of causing the states to lose
billions of dollars in federal funds during
one of the worst ever fiscal crises.
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The regulation forces the states to surrender
their sovereign police powers, unable
to enforce their own laws.
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Women in the United States posses a constitutional
right to be free of impermissible government
interference when they seek reproductive
health services, including contraception.
The regulation impermissibly interferes
with a woman’s access to contraception
in violation of the state and federal
constitutions.
The
lawsuit seeks, among other things, injunctive
relief, enjoining the federal government
from implementing the Provider Conscience
Regulation.
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