abortion referral regs

[Bezanson, Randall P]

I have read about the midnight regulation(s) of the Bush administration that, in part, exempt health care providers who refuse to participate in abortion for reasons of religion or conscientious objection (this is not new) to also refuse to advise patients of alternative health care providers, facilities, etc. at which an abortion can be obtained.  If I am right in describing the proposed regulation in the abortion setting, this seems to present first amendment problems.  Unlike Rust v. Sullivan, where the providers were scripted by government (thus government speech), here they are free to express their own preferences about medical advice by way of what is in effect an exemption from otherwise applicable legal duties.  It seems therefore to be a legal exemption for speech expressing a favored point of view.

Two caveats:  first, I have not seen the proposed regulation(s), and would appreciate being better informed -- or corrected -- by anyone familiar with them; second, I realize that the scope of the proposed regulation(s) is broader, both in those so exempted (i.e. pharmacist, too, I believe) and the subjects affected/exempted.  But it still strikes me that such a selective point of view-based exemption is problematic, and that the issue is not solved simply by saying that its effect is to allow the health care providers to express their own convictions (to the detriment of the patients).

I would be interested in further thoughts on this.

Randy Bezanson
Univ. of Iowa