DPH reopens public comments after stealth abortion regulation changes

A public comment period for proposed changes to Connecticut’s abortion regulations has been reopened after a Catholic group drew attention to the Department of Public Health’s (DPH) removal of certain sections of existing regulation, including for religious belief.

DPH has posted and retracted several versions of proposed regulatory changes, all of which have removed three existing provisions involving religious objections to abortions for health care workers, when abortions can be performed in the third trimester, and health care provided to infants born alive after an abortion.

All three omissions were posted after a public comment on the proposed changes had been closed. Public comments on the proposed changes, which were rejected by the legislature’s Regulatory Review Committee earlier this summer, were reopened on August 19 and runs through September 20.

A public hearing on the proposed changes may also occur, though DPH did not respond to a request for comment.

Timeline of Proposed Changes

Updates to the state’s abortion regulations that would incorporate changes made by legislation passed in 2022 expanding the number of medical providers able to perform abortions were first proposed in April 2023. They included updates to various definitions in the regulations, including to a health care provider, and incorporated the legislative changes allowing licensed advanced practice registered nurses, nurse-midwives, and physician assistants to perform abortions.

The only updates DPH made to provisions protecting health care providers who declined to perform an abortion for religious reasons and directing medical care to be provided to newborns born alive following an abortion were renumbering consistent with the changes, as well as updates to terminology. However, a clause specifying that abortions could only be performed during the third trimester of a pregnancy if it was necessary to protect the life or health of the mother was missing.

Another version of the proposed regulations was posted in August 2023. It also included provisions for religious objections and required medical care in the case an infant was born alive following an abortion. A public comment period on the proposed regulation ran from August 1, 2023, to September 1, 2023.

But DPH made additional changes to the regulation in May of 2024, including the removal of a section containing both provisions for religious objection to abortion provision and the requirement that medical care be provided to infants born alive after an abortion. The provision limiting when abortions can be performed in third-trimester pregnancy changes were also missing.

It was this version that the legislature’s Regulation Review Committee (RRC) received to vote to either approve or reject at a July 23, 2024 meeting.

A letter sent by DPH commissioner Manisha Juthani to the committee noted the proposed changes being put forward made updates in keeping with the 2022 law “to specify that certified nurse-midwives, advanced practice registered nurses, and physician assistants licensed in the state of Connecticut may provide medication abortion services and abortion provisions.” Juthani also noted that some other changes had been made to clarify definitions and reorder certain sections of the regulation but made no mention of the provisions that had been removed.

At its July 23 meeting, the RRC voted to reject DPH’s proposed changes following a recommendation from the nonpartisan Legislative Commissioners’ Office (LCO). A report from the LCO stated that DPH did not have the statutory authority to make the proposed changes and noted the agency inconsistently cited the statutes it was seeking to change in various notices related to the updates.

The LCO also raised a substantive concern about the use of the term “abortion procedures” in the proposed regulations, which DPH did not define.

Following the RRC’s rejection, DPH has since posted an updated proposed regulation, withdrawn it, and reposted it. All three provisions involving religious objections, medical care for infants born alive following an abortion, and limits on when abortions may be performed in the third trimester remain cut in the most recent updates to the proposed regulation.

In their place are new provisions related to informed consent, counseling for patients who have received an abortion, and emergency preparedness.

Flagging the Changes

The Connecticut Catholic Conference (CCC), which has raised concerns about the proposed regulations with both DPH and the RRC, told Inside Investigator that it first noticed the changes when the agenda for the RRC’s July 23 meeting was posed.

“We looked through and realized they were making significant changes. We were surprised. We expected the changes to incorporate the 2022 law about expanded providers. But we realized it went far beyond that.” David Reynolds, a deacon in Catholic churches serving Harwinton and New Hartford and CCC’s associate director for public policy, told Inside Investigator.

Reynolds said the Catholic group was very concerned and raised the issue with the committee, sending letters to committee members and others involved with the proposed changes.

“We approached it from a procedural perspective,” Reynolds said, emphasizing that the information on the changes was not posted properly as the changes were made after the public comment period had closed.

“[W]e are once again asking the committee to vote to “disapprove” the proposed regulations when they are resubmitted for your consideration. The complete lack of transparency in the process, along with the administrative overreach by the DPH, should not be tolerated by the committee.” CCC wrote in an August 1 letter to the RRC and DPH.

The group has argued that the substantive changes to the regulation made after the closure of the public comment period invalidate the proposed regulation and do not meet requirements in state law that agencies post accurate notices of intended changes to regulation.

“The failure of proper notification and clarity in the declared purpose for revising the existing abortion regulations has resulted in a regulation being proposed that not only incorporates changes for [the law expanding what health care providers can perform abortions] and standards of care as stated by DPH, but eliminates religious protections for providers who do not wish to participate in abortions…eliminates safeguards for a newborn showing signs of life after an abortion…and the prohibition of abortions during the third trimester of pregnancy with specific exemptions.” the letter continued. “None of these topics were mentioned in any notification filed by DPH.”

The letter also took issue with DPH’s arguments for retaining the omitted sections in subsequent draft proposals, writing that the agency appeared to be treating the removal as “a mere technical error.”

“Failing to reference an existing section of a regulation, with the intention of eliminating it, is not a mere technical error.” the letter states, referencing the omission of the clause dealing with when abortions may be performed in the third trimester, which was missing from earlier proposed changes.

They also addressed DPH’s argument that the removal of the clause providing religious exemptions was unnecessary because it is addressed in other state and federal law.

“This statement is erroneous and shows a clear misunderstanding of the religious protections contained in these documents. If proper notice was given to the extent the department was considering in revising these regulations proper testimony could have been presented correcting this misconception of constitutional law. Additionally, information could have been presented abut how [this section] reflects long standing federal law.” the letter states.

Reynolds and CCC executive director Chris Healy stated they have gone back and forth with both the RRC and DPH. They described RRC members as very straightforward and reasonable and said that when they first brought the issues to the committee’s attention, they realized there were problems.

Their quarrel is primarily with DPH.

“They’re just moving along with it and pushing it through,” Healy said of DPH’s submittal of proposed changes that eliminate the three sections, “There’s a certain element that they don’t fear the outcome because they satisfied an interest group to do this. If the court decides to rebuke or repeal them, they can say the court stopped it, not the will of the people. There was no will of the people here. On that alone, we’re on pretty strong ground.”

Healy also referenced Loper Bright Enterprises v. Raimondo , the recent Supreme Court decision overturning the Chevron Deference.

“This is clearly an example of what the Chevron decision is all about, agencies of the executive contriving regulations without legislative authorization. There was no legislative authorization to do these three things. Given the importance of them, these are not small technical changes.” he said.

On the substance of the changes, Reynolds and Healy both indicated DPH is acting purposefully to avoid the legislative process.

“If they had tried to bring this up in a bill, a lot of pro-choice people have problems with late term abortions, or respect religious exemptions. We think this wouldn’t have passed even in a pro-choice environment.” Healy said.

“This is sadly a pro-abortion state in many ways. On any measurable level, it’s one of the top five states. After the Dobbs decision, in many states where they had to go back to zero, that sent it back to states–which is where we think it should be–we saw all the debates. But in Connecticut, because abortion laws were codified in 1990, there was no place for these abortion zealots to go.” Healy added. “They have to have something to do every day. They’re looking for little pockets to push. It’s why we see the religious exemption [being eliminated]. It galls them that a medical provider cannot participate in an abortion and be protected against action from their employer for not doing so. That’s what this law does.”

What Now?

CCC indicated they believe that, on top of the public comment period being reopened, DPH will hold a public hearing on the proposed changes.

In a notice announcing the reopening of public comments, DPH noted they would schedule a public hearing at ten o’clock on September 4 if they receive notice of interest from at least 15 people. Reynolds said CCC believes enough requests for a public hearing have been submitted, but they haven’t received notice from DPH.

As to the next steps, Healy said the hearing is great, but doesn’t create anything other than an ability for people to express their concerns on the record.

“I’m sure DPH will present their arguments. Not that we have a new comment period and a new hearing we’ll be able to present our side. And we have extremely strong points to refute.” Reynolds said.

UPDATE: After publication, DPH Director of Communications Christopher Boyle responded to Inside Investigator’s request for comment, saying: “On Sept. 4, 2024, the Connecticut Department of Public Health will hold a public hearing on the proposed changes to the state’s regulations related to the provision of abortion services.  The hearing is scheduled to take place at 10 am in a hybrid format including in person with the option to provide oral comment via zoom . Interested parties and members of the public may provide oral comment at the public hearing, or written comment via the eRegulations system or both.  All persons who attend the public hearing will have up to three minutes to provide comment. The public comment period for receiving written comments closes on Sept. 20, 2024 at 11:30 pm.  The location of the hearing will be posted on Friday, Aug. 30.  The Department will publish its responses to comments in accordance with the requirements of the Uniform Administrative Procedure Act after all comments have been received and reviewed.”

The post DPH reopens public comments after stealth abortion regulation changes appeared first on Connecticut Inside Investigator .