STATE OF CONNECTICUT
NANCY WYMAN COMPTROLLER	OFFICE OF THE STATE COMPTROLLER 55 ELM STREET HARTFORD, CONNECTICUT 06106-1775	MARK OJAKIAN DEPUTY COMPTROLLER

Attorney General Richard Blumenthal, on behalf of Comptroller Nancy Wyman and Healthcare Advocate Kevin Lembo, sued the Bush administration today to block an impending federal rule that gravely 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, this Bush administration midnight regulation undercuts Connecticut's contraception laws and jeopardizes billions of dollars in federal public health money.

Blumenthal's lawsuit -- joined by six other states -- alleges that this Provider Conscience Rule violates federal law, women's rights and states' sovereign rights to enforce their own laws.

"On its way out, the Bush Administration has left a ticking legal time bomb set to explode literally the day of the inaugural and blow apart vital constitutional rights and women's health care," Blumenthal said.

"The courts must strike down this unconscionable, unconstitutional last-minute midnight rule -- a final swipe by the Bush Administration at women's health rights. The federal government is impermissibly interfering with constitutional rights and carefully crafted and balanced state measures protecting patients and women, particularly rape victims who may require immediate access to emergency contraception.

"Countless women may be denied emergency contraception and other care -- even after rape -- without adequate information and alternatives. It intentionally shrouds the term abortion in new and unnecessary ambiguity, encouraging each individual to define it and deny virtually all forms of contraception, even emergency contraception to rape victims. Individual beliefs should be respected, but should not determine whether vital health care is available.

"Empowering any random individual on duty to deny critical health care -- on a whim or wish -- is arbitrary, unfair and illegal. The rule decimates professional accountability. It destroys carefully crafted and balanced state laws like Connecticut's that safeguard health care while respecting individual conscience. This midnight rule is a nightmare for hospitals and clinics as well as women because any individual may simply deny emergency health care -- without providing a reason or alternative to patients or even informing supervisors."

Last month, the U.S. Department of Health and Human Services (HHS) approved this controversial rule, which claims to protect health care providers who refuse to administer certain health care services due to religious or moral objections -- including birth control.

The regulation intentionally fails to define the key term "abortion" and shrouds that term with new ambiguity, emboldening individuals to define it as encompassing many forms of contraception, including emergency contraception.

Blumenthal said, "Failing to define abortion and confusing it with contraception is a fatal flaw with far reaching destructive ramifications. Individuals who employ their own definitions of abortion without informing patients or superiors may deny critically needed medical treatment to patients.

"Women's health may be endangered -- needlessly and unlawfully -- if this rule is allowed to stand. As important as the billions of dollars at risk, rampant confusion and denial of essential care will be the harsh, stark result. At a time when we can least afford it, the rule exposes Connecticut to billion-dollar penalties -- the loss of all federal public health money -- for enforcing its own hard-fought contraception and patient rights laws."

Wyman said, "Decisions about contraception should not be affected by government regulation or the objections of an individual health care provider. This regulation could prevent a woman who has been raped from getting the information and guidance she needs to make an informed choice. But this issue goes beyond abortion or contraceptive pills. It is vitally important that all legal drugs are available when a patient needs them, and this regulation could prevent that from happening."

Lembo said, "This new 'conscience' regulation will wipe out our negotiated state policy that women have access to medically necessary healthcare, including emergency contraception. My staff and I do our best to help women navigate an already complex managed care system. This regulation makes it nearly impossible to make educated decisions about insurance plans or providers since there is no way of knowing which services are offered until you actually need them. If, at that time, the doctor doesn't want to provide the service a patient needs, she can simply be turned away without explanation or referral. This is an unacceptable roadblock to care.

Lembo added, "This is a potentially dangerous and ideologically driven regulation. It is based neither in sound health policy, nor a spirit of compassion. The result will be confusion and desperation for women seeking care in often very traumatic circumstances."

Several women's health and patient rights groups -- which are filing parallel, but distinct lawsuits against the Provider Conscience Rule -- joined Blumenthal at a press conference today.

Judy Tabar, President and CEO of Planned Parenthood of CT, said, "Ever since 1965, when our organization served as plaintiff in Griswold v Connecticut, PPC has been proud to be at the heart of events, like the filing of today's litigation, that have pushed the entire nation forward. We are grateful for the friendship and vision of leaders like Attorney General Richard Blumenthal, who never fails to remind us of Connecticut's special role in the history of the reproductive justice movement, and of the importance of acting swiftly to repel wrongheaded, hurtful public policy."

In 2007, the Connecticut General Assembly addressed a dire and pressing issue facing victims of sexual assault: the refusal by some licensed emergency health care facilities to provide female victims of sexual assault with information about, and access to, emergency contraception.

Connecticut overcame great controversy to reach a compromise law that protects both patients and providers -- but now risks losing all federal health funding if it enforces that law.

The rule may block Connecticut officials from enforcing at least two other laws, including one that permits the state's comptroller to remove pharmacies from the state prescription drug insurance plan for refusing to dispense contraception.
Specifically, Blumenthal alleged the regulation is illegal because:

• 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. HHS declined a request by attorneys general of 13 states to clarify what medical procedures the proposed rule covered, and to define abortion.
• The Spending Clause of the U.S. Constitution requires that, when "Congress desired to condition state's 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 an informed choice about whether to comply with the regulation or forego federal funding, jeopardizing billions of dollars.
• The Spending Clause also prohibits Congress from conditioning the receipt of federal funds in such a way that leaves 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 them at the risk of losing billions of dollars in federal funds during one of the worst-ever fiscal crises.
• The regulation forces the states to surrender their sovereign police powers, leaving them unable to enforce their own laws.
• 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.

Today's lawsuit seeks, among other things, injunctive enjoining the federal government from implementing the Provider Conscience Regulation.

Those states joining Blumenthal's lawsuit are California, Illinois, Massachusetts, New Jersey, Oregon and Rhode Island.

The State Comptroller appreciates input on this and other issues from residents of the state. Please feel free to contact her office by phone - (860) 702-3300; mail - OSC, 55 Elm Street, Hartford, CT 06106; or, via E-mail - osc.opinions@po.state.ct.us

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