Fox News hosts falsely asserted that doctors could be jailed for refusing to perform abortions under Obama administration

On the March 3 edition of Fox News' Special Report and the March 4 edition of America's Newsroom, hosts Bret Baier and Megyn Kelly, respectively, misrepresented the reported plans of the Obama administration to rescind a December 2008 Bush administration regulation to falsely assert that the Obama administration's decision could result in doctors' being prosecuted or discriminated against for refusing to perform abortions. In fact, federal law bans discrimination against doctors for refusing to perform abortions; proponents and opponents of the Bush regulation reportedly agree that because of the way it is written, the regulation could allow doctors and health care workers to refuse to provide other services or medical treatments that they feel violates their beliefs.

On the March 3 edition of Special Report, Baier reported that a "top Republican senator [Tom Coburn (OK)] says he and his fellow doctors would rather go to jail than perform abortions. President Obama is considering repealing a regulation that kept doctors from having to make that choice in the past." Similarly, on the March 4 edition America's Newsroom, Kelly reported: "President Bush made it a lot easier for doctors to refuse procedures inconsistent with their religious beliefs, like abortion or sterilization. Now President Obama is set to change that. Our upcoming guest is a senator, and a doctor, who says he will go to jail before he's forced to something against his beliefs."

In fact, Obama is not "considering repealing" regulations forbidding discrimination against medical professionals who refuse to perform abortions on moral or religious grounds; nor will Obama "force[]" doctors to make a choice between performing abortions or sterilizations and going to jail. Federal law -- which the Obama administration cannot "repeal[]" -- prohibits public officials from requiring recipients of public funds to perform abortions or sterilizations in violation of their religious or moral beliefs. Similarly, federal law prohibits entities receiving public funds from discriminating against personnel who refuse to perform those procedures for those reasons. From Title 42, § 300a-7 of the U.S. Code:

(b) Prohibition of public officials and public authorities from imposition of certain requirements contrary to religious beliefs or moral convictions

The receipt of any grant, contract, loan, or loan guarantee under the Public Health Service Act [42 U.S.C. 201 et seq.], the Community Mental Health Centers Act [42 U.S.C. 2689 et seq.], or the Developmental Disabilities Services and Facilities Construction Act [42 U.S.C. 6000 et seq.] by any individual or entity does not authorize any court or any public official or other public authority to require --

(1) such individual to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions; or

(2) such entity to --

(A) make its facilities available for the performance of any sterilization procedure or abortion if the performance of such procedure or abortion in such facilities is prohibited by the entity on the basis of religious beliefs or moral convictions, or

(B) provide any personnel for the performance or assistance in the performance of any sterilization procedure or abortion if the performance or assistance in the performance of such procedures or abortion by such personnel would be contrary to the religious beliefs or moral convictions of such personnel.

(c) Discrimination prohibition

(1) No entity which receives a grant, contract, loan, or loan guarantee under the Public Health Service Act [42 U.S.C. 201 et seq.], the Community Mental Health Centers Act [42 U.S.C. 2689 et seq.], or the Developmental Disabilities Services and Facilities Construction Act [42 U.S.C. 6000 et seq.] after June 18, 1973, may --

(A) discriminate in the employment, promotion, or termination of employment of any physician or other health care personnel, or

(B) discriminate in the extension of staff or other privileges to any physician or other health care personnel,

because he performed or assisted in the performance of a lawful sterilization procedure or abortion, because he refused to perform or assist in the performance of such a procedure or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting sterilization procedures or abortions.

A February 27 Scientific American blog post on the Obama administration's "intention to rescind" the Bush-era regulation reported:

Federal law bars discriminating against healthcare workers who refuse to provide abortions or abortion referrals to patients, but the Bush reg change requires federally funded facilities to certify that they're complying with it -- and both proponents and critics of the new rule agree that the way it's worded could be broadly interpreted to allow workers to also block access to other medical treatments, such as contraception and artificial insemination.

In addition, a February 27 article on NPR.org reported:

[O]pponents say the regulation was written so broadly that it could allow workers to decline to participate in many other types of sensitive medical procedures -- from blood transfusions to end-of-life care.

And in parts of the country with few medical providers, those refusals could put patients at risk, those critics contend.

"That rule was so broad that even the cashier at Walgreens could refuse to provide medication for somebody if the cashier decided they have a religious objection," said Rep. Diana DeGette (D-CO).

From the March 3 edition of Fox News' Special Report with Bret Baier:

BAIER: One top Republican senator says he and his fellow doctors would rather go to jail than perform abortions. President Obama is considering repealing a regulation that kept doctors from having to make that choice in the past.

Correspondent Shannon Bream is live with details. Hi, Shannon.

BREAM: Hi, Bret. Well, over the past 30 years, a number of laws have been passed that protect the rights of medical workers if they decline to perform procedures they've got a moral objection to, like abortion. Well, those protections got an added boost when the Bush administration issued a federal regulation beefing up the laws and providing for enforcement. This was shortly before President Bush left office.

Now, the Obama administration is making moves to have that federal regulation revoked. Republican Senator Tom Coburn, a pro-life obstetrician, says he and many of his colleagues would be willing to go to jail rather than do anything that violates their moral convictions.

COBURN [video clip]: I will do nothing against my conscience in the practice of medicine, regardless of what any law is at any time, and I can tell you there's a lot of physicians that feel exactly that way across the country.

BREAM: A senior Obama administration official says the Bush regulation is too vague and could prevent some medical professionals from offering a full range of services to their patients, quote: "This policy of potentially allowing providers to refuse to provide contraception or family planning runs counter to the Obama administration's goal of reducing abortions and unwanted pregnancies. It could also lead into other areas of medical care."

The regulation in question falls under the Department of Health and Human Services. Kansas Governor Kathleen Sebelius, who has a long history of supporting abortion rights, has been nominated to head up that department.

There's been significant outcry from a number of conservative groups who worry about the governor's record on abortion and about her potentially having some oversight of the repeal of this regulation. There will be a 30-day public comment period once the administration officially announces its intention to rescind the regulation before it can actually be revoked -- Bret.

BAIER: Shannon, thanks.

From the March 4 edition of Fox News' America's Newsroom:

KELLY: While President Bush made it a lot easier for doctors to refuse procedures inconsistent with their religious beliefs, like abortion or sterilization, now President Obama is set to change that. Our upcoming guest is a senator, and a doctor, who says he will go to jail before he's forced to do something against his beliefs.

From the February 27 Scientific American blog post:

Reproductive rights groups are cheering President Obama's intention to rescind a "midnight regulation" issued in the waning days of the Bush administration that blocks federal funding of healthcare facilities that don't allow their employees to bow out of medical procedures, such as abortion, to which they have moral objections. Advocacy groups last month sued the government over the so-called "right to conscience" rule, charging that it's unlawful.

The administration will publish a notice in the Federal Register next week announcing that it's planning to change the rule, the Associated Press reports.

"We've been concerned that the way the Bush rule is written it could make it harder for women to get the care they need," an unidentified Department of Health and Human Services official told the Washington Post. "It is worded so vaguely that some have argued it could limit family planning counseling and even potentially blood transfusions and end-of-life care."

Federal law bars discriminating against healthcare workers who refuse to provide abortions or abortion referrals to patients, but the Bush reg change requires federally funded facilities to certify that they're complying with it -- and both proponents and critics of the new rule agree that the way it's worded could be broadly interpreted to allow workers to also block access to other medical treatments, such as contraception and artificial insemination.

The Center for Reproductive Rights praised the move. "Any time, any worker at a healthcare facility can prevent a woman seeking reproductive services from getting care, information and even, a referral -- and the government sanctions such conduct -- it's time for a regulatory 'do-over,'" said said [sic] Nancy Northup, the group's president. "The Bush administration claimed that this policy protects healthcare providers against discrimination, but in truth, it leaves patients unprotected and seriously violates their rights and medical needs."

Obama on Jan. 23 reversed Bush's controversial "Global Gag rule," which cut off federal funding for international-aid groups that perform or provide information about abortions. The regulation, also known as the Mexico City Policy, had been in effect on and off since 1984.