Secretary Michael O. Leavitt
Department of Health and Human Services
200 Independence Avenue, SW
Washington, DC 20201
Dear Secretary Leavitt:
I am writing to express my support for the draft proposed regulation, presently being circulated by the U.S. Department of Health and Human Services, which would protect the right of employees to refuse to facilitate any abortifacient chemical or activity. Under the draft proposal, the federal government will use its grant-making power to compel private employers to respect this right of refusal.
In particular, I commend the language of the draft, which would define abortion as "any of the various procedures—including the prescription, dispensing and administration of any drug or the performance of any procedure or any other action—that results in the termination of the life of a human being in utero between conception and natural birth, whether before or after implantation." This definition protects the right of employees to withhold oral contraception, which could prevent implantation of an already-conceived embryo.
My concern, Mr. Secretary, is that the proposal does not go far enough.
As you know, the risk that oral contraception will prevent implantation of an embryo is purely theoretical. There is no documented case of such a tragedy, since we have no way to verify conception inside a woman's body prior to implantation without causing the embryo's death. Even theoretically, the risk is vanishingly small, since the primary effect of oral contraception is to prevent ovulation, and the secondary effect is to prevent fertilization. To classify oral contraception as abortifacient, one would have to posit a scenario in which the drug fails to block ovulation, then fails to block fertilization, and yet somehow, having proved impotent at every other task, manages to prevent implantation.
It is a tribute to the president's courage that despite this profound implausibility and total absence of documentation, he is protecting the right of employees to refuse to facilitate any such risk, no matter how small.
Based on this generous standard, I hope you will agree that employees deserve protection when they decline to facilitate additional activities that pose an equal or greater risk to the embryo. Specifically, I call to your attention the problem of breast-feeding.
Thousands of people working at hospitals, lactation centers, maternity-product retailers, drug stores, and supermarkets are presently required by their employers to participate in breast-feeding, either by teaching it or by providing products that facilitate it. Those who refuse can be terminated at will. They endure this discrimination despite clear scientific evidence that breast-feeding poses the same abortifacient risk as oral contraception.
Breast-feeding, like oral contraception, alters a woman's hormonal balance, thereby suppressing ovulation, fertilization, and, theoretically, implantation. These results were documented in a 1992 research paper, "Relative Contributions of Anovulation and Luteal Phase Defect to the Reduced Pregnancy Rate of Breastfeeding Women." The authors concluded: "The abnormal endocrine profile of the first luteal phase offers effective protection to women who ovulate during lactational amenorrhea within the first 6 months after delivery." In other words, breast-feeding prevents pregnancy despite ovulation.
Note that the authors described this effect as "protection" despite the fact that they worked for a Catholic university. This illustrates the urgent need for specific regulatory language with regard to breast-feeding. Technically, the current HHS draft proposal would guarantee the right to withhold breast-feeding products or assistance, since it defines abortion as encompassing "any other action … that results in the termination of the life of a human being" prior to implantation. Catholic health providers, however, specifically endorse, promote, and facilitate breast-feeding despite its abortifacient risks. Employees of such providers who cannot in good conscience engage in these activities require specific protection from coercion by Catholic authorities.
In addition, millions of Americans in the food-service industry face the threat of discrimination if they decline to participate in the provision of caffeinated beverages to women of childbearing age. Earlier this year, the American Journal of Obstetrics and Gynecology published a study showing that "an increasing dose of daily caffeine intake during pregnancy was associated with an increased risk of miscarriage." The evidence suggests that drinking 10 ounces of coffee per day could double the probability of miscarriage.
It is not sufficient to protect the right of food-service personnel to refuse caffeine to women who are visibly pregnant. Pregnancy is not externally visible until well into gestation. Nor is it sufficient to protect caffeine refusal to pregnant women only. The stated purpose of the draft proposed regulation is to protect human beings prior to implantation—in other words, prior to pregnancy. As mentioned above, there is no way to determine, prior to implantation, whether a woman is carrying a newly conceived human being. Therefore, to avoid the theoretical abortifacient risk, employees must be guaranteed the right to refuse caffeinated beverages to any woman who appears to be of childbearing age.
Furthermore, millions of Americans presently work at gyms, swimming pools, parks, or other recreational facilities where they may be required to encourage or collaborate in exercise by women. Research published last year in a British journal of gynecology demonstrated that, as with caffeine, "exercise early in pregnancy is associated with an increased risk of miscarriage." Again, to avoid abortifacient risk in women who are not yet pregnant, the draft regulation must guarantee the right to withhold any collaboration in exercise by women of childbearing age.
Thank you for your steadfast pro-life efforts and for expanding the definition of abortion to include any activity that results in the termination of human life prior to implantation. This expanded definition will save the lives of more and more unborn human beings as we advance from conscience protections to legal restrictions on abortion. As research uncovers additional causes of miscarriage or preimplantation embryo loss, I look forward to further legislation against caffeine consumption, exercise, and other abortifacient activities among premenopausal women.
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