HHS Refusal Clause Threatens Patient Conscience

The proposed regulation released by
the Department of Health and Human Services seems not
to be at all about protecting religious freedom. Rather, it uses the
guise of religious freedom to create unreasonable barriers for women
and men to access sexual and reproductive health care. Women and men
should be able to access safe and legal sexual and reproductive health
services. We need to campaign for a standard of care that gives everybody,
without exception, access to the services and information they need.

Under the proposed rule, individuals
cannot be required to “perform or assist in the performance of any
part of a health services program or research activity funded by [HHS].”
This goes well beyond the concerns some have about the provision of
abortion, sterilization and contraception. The rule even allows practitioners
who object to medical procedures to refuse to refer patients elsewhere.
The proposed rule is so broadly written that it will not only excuse
health workers who refuse to dispense birth control pills, emergency
contraception and other forms of contraception, but may also be interpreted
so as to affect referrals and counseling on issues seemingly unrelated
to abortion—such as the provision of health-care services to gays
and lesbians or counseling to an HIV-positive patient.

The question remains: Are these new
regulations needed at all? Conscience clauses have gone through many
permutations since they first appeared after the Roe v Wade decision;
and there are currently three federal conscience clauses on the books.
While these clauses claim to protect health-care workers who refuse
to participate in certain health-care practices, they result in women’s
access to vital health-care services being threatened. The ability to
deny providing even counseling or referrals becomes an infringement
on the conscience of the patient by denying her the means to obtain
an abortion in a safe, convenient and timely manner. The expansion of
these clauses goes beyond protecting the religious and moral beliefs
of health-care providers; they act as a means to refuse treatments and
medications to all.

The concept of conscience has been
repeatedly manipulated, especially in the context of reproductive health
and rights. While some have pointed to Catholic teaching and the support
of the US Conference of Catholic Bishops and the Catholic Health Association
(the trade association of the Catholic health industry), to support
the imposition of ever-more restrictive refusal clauses, such as those
in the new HHS proposal, they do not, in fact, reflect the Catholic
position. Catholic teachings on conscience are much more nuanced than
is usually presented in legal and policy debates.

Catholic teaching requires due deference
to the conscience of others in making decisions. Health-care providers
must not dismiss the conscience of the person seeking care. If conscience
truly is one’s “most secret core and his sanctuary [where] he is
alone with God, whose voice echoes in his depths,” as the Catholic
states, how can anyone, or any institution for that matter,
justify coercing someone into acting contrary to her or his conscience?

The goal of any reasonable conscience
clause must be to strike the right balance between the right of health-care
professionals to provide care that is in line with their moral and religious
beliefs and the right of patients to have access to the medical care
they need. Within the field of medical ethics, the accepted resolution
to a conflict of values is to allow the individual to act on his or
her own conscience and for the institution (the hospital, clinic or
pharmacy) to serve as the facilitator of all consciences. Additionally,
the individual, in this case a doctor, pharmacist or nurse, must not
dismiss the conscience of the person seeking the health service. One
does not need to deny a patient emergency contraception or abortion
in order to remain a good Catholic.

The result of the recent expansion
in refusal clauses is that women and men seeking sexual and reproductive
health-care services are routinely denied access to or have great difficulty
in receiving care. When the government, through regulation and support
of those who are willfully denying necessary medical treatment to individuals,
is party to such an expansion, it is negating the right to conscience
of the woman, or man, seeking care.

We strongly support the reasonable
accommodation of employees’ religious beliefs in the workplace, but
a woman, regardless of her religion, age, income, race or geographic
location must have access to the health-care services she needs, including
the full range of contraceptive options and information.

Behind this proposed regulation is
a claim that it will protect individuals who feel they are being denied
rights. However, in doing so, it goes too far and tramples the rights
of those who will be consequently denied medically appropriate treatment.
Current federal conscience clauses already provide more than enough
protection for those medical professionals who refuse to provide services
to which they object. There is no need to introduce any more such clauses.
In fact, we would do well to revisit the ones that are already on the
books to ensure that they do enough to recognize the rights of patients
needing medical care.

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  • mh
    This a very poor analysis. You ask:

     "…how can anyone, or any institution for that matter, justify coercing someone into acting contrary to her or his conscience?"

    Excellent question. I would agree with you, and I think the Catholic catechism would agree with you, in saying that no one, no institution, and not even God himself may ever coerce anyone into acting contrary to her or his conscience.

    So we have to look at what coercion means.

    To require physicians by law to perform or refer for procedures they disapprove of sounds a lot like coercing people to violate their conscience. It’s coercion backed up by the force of government. As George Washington said,

    "Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master."

    Government is force. Law is force. We should all be very skeptical of any claim made by the government to have the right to use force to restrict anyone’s actions. Now, on some things there is wide consensus, like the consensus against murder and theft. So perhaps (perhaps!) the government is justified in outlawing such acts and using force to punish them. But given the great division in this country over the abortion issue, it is gravely questionable whether the government should presume to use force to prevent abortions from happening.

    But equally, it is gravely questionable whether the government should use force to prevent people from trying to stop abortions. Polls consistently come about 50-50, give or take, on pro-choice vs pro-life. If that intense lack of consensus justifies caution on laws against abortion, surely it equally justifies caution on laws against otherwise legal attempts by private citizens to limit, discourage or prevent abortion.

    Then we need to examine the equally important question of whether, by protecting the conscience of health care providers, we are coercing other people to violate their conscience when making reproductive health care decisions.

    Sadly, your analysis is a excellent example of pro-choice people talking out of both side of their mouth. You say:

    "The ability to deny providing even counseling or referrals becomes an infringement on the conscience of the patient by denying her the means to obtain an abortion in a safe, convenient and timely manner. "

    If anyone’s refusal to act constitutes a coercion of women, then women must be pretty ineffective creatures. Are you seriously suggesting that if a woman goes to her personal doctor to ask for an abortion referral, and he refuses to provide one, that this is going to stop the woman in her tracks? Do you honestly want to make the claim that women are too stupid to look in the yellow pages under "Abortion," the very first heading in most phone books? With around 50% of women age 40 or under having had one or more abortions, do women really have no friends they can turn to who can advise them on how to obtain a legal abortion? Are women truly so bereft of resources, so completely dependent on the kind actions of a single male doctor, that any obstacle placed in their path will send them reeling into helplessness?

    I refuse to believe any such thing. You can’t have it both ways. Either women are mature, competent, equal beings who are capable of making big decisions and locating the resources they need, or they are weak, childish, pretty things who need gentle care and oversight.

    So if we are going to weigh the comparative rights violations — a doctor being coerced by force of law — ultimately by a gun — to violate his conscience, or a women forced to look in the yellow pages or go to the drug store to buy a condom over the counter — I don’t see how there can be any question which side we should all come down on.

    I do agree that giving people the power to refuse service to anyone they don’t like is somewhat chilling, and we saw how horrible that could be in the 50s and 60s during civil rights movement. But given the choice between personal, human nastiness, and remote, inhuman, institutional force, I will always pick the former. It’s not perfect, but it’s way less scary than the alternative.

    Since you talk about the Catholic Church so much, you must know that Catholic teachings on conscience are that the Church and private individuals have no authority to use force to correct people’s conscience. We should all be working on educating people about how to form their consciences properly so that all these conflicts can just go away. After all, that’s what the civil rights movement did, and though we still have a ways to go, we’re seeing better progress now than anyone could have predicted. I don’t believe that force, personal or institutional, really solves conflicts in the long term.

    It’s also worth considering that according to the Alan Guttmacher institute, something like 30% of abortions are performed on women who do not freely choose the abortion. Rather they feel coerced by a boyfriend, husband or parents and submit to a procedure they personally believe is immoral. Anyone who wishes to go on and on about conscience rights should think long and hard about whether we are giving those women, maybe 400,000 of them every year, the resources they need to empower them to make a decision that is in accord with their consciences.

  • harry834

    that with every doctor now free to define "abortion" and "contraception" as their conscience says, there are now greater obstacles, because a once-standard (relatively) service provision is now something that may or may not be offered depending on how an individual doctor feels the line between abortion and contraception should be drawn?

    What if she lives in a rural area, and the next doctor is miles away? Can we even be sure that he’ll have the right "conscience" to give her the pills she needs?

    The yellow pages might not be an up-to-date enough guide to keep up with the doctor’s consciences. Will new telephone books have to be written up to catch up with every change in conscience that might effect whether or if or what kind of treatments a woman can expect?


  • harry834

    why can’t there be staff members who are willing to do what one doctor won’t? That way, even when there are doctors who doesn’t believe contraception or abortion, they will always be standing next to someone who DOES believe in it, and the woman’s guarentee of treatment is protected.

    Hiring one or two pro-choice doctors for every pro-life one?


  • heather-corinna

    I also feel like we need to remember that this is laregely about PUBLIC healthcare services, where you often do not have a choice in what healthcare provider you get, and where you cannot just simply choose your doctor or provider out of a phone book or just go anywhere. Where, too, if you make a fuss about ANYTHING, even when valid, it often doesn’t go well, and when you have to know that in doing so, you may well be presented with a denial of services altogether or more trouble seeing anyone at all. When you can’t just pull out an insurance card or cash to pay for healthcare, there is a differentset of dynamics at play.


    Having spent way too many years in my life now dependent on the public healthcare systems of several cities, it’s always clear when people may be dismissing the differences out of hand who are used to being insured or middle-or-upper income patients. Even with a non-reproductive issue, for instance, getting care can be tough, tends to require a lot of trips and for some of us, a lot of cash put out before we can actually see the right person or get the care we need.


    The people this will impact the most are the people who often have the LEAST resources and the least flexibility and agency. It will also impact those who face the most discrimination from the most places. For instance, as someone who does work with the teen population, I know that they face a lot of discrimination when it comes to getting methods of contraception because so many adults feel it simply isn’t okay for them to be sexually active. In some towns — and again, we’ve had this directly reported — especially with this new clause — it would be very easy for teens who need BC to find that NO ONE within reach will provide it for them.


    (And then that no one will refer them to abortion services if they wind up needing and wanting those, and then, if they stay pregnant, wanted or not, they also get to live under the discrimination they’ll face even in getting prenatal and postnatal care, and even when, effectively, they were set UP to be in this position by all the doctors around them. Would that happen every day to that degree in every area? No, I don’t think so. But it can come close now in some areas as it is, and I would say it’s a very likely reality we’ll see get even more prevalent. And this, for a population who can’t even vote against the folks pushing this stuff: they rely on us to safeguard them from policies like this.)


    In some areas, GLBT will get to have an even tougher time getting services than we do already. Women of color and poverty who already deal with healthcare discrimination enough — especially reproductive care — get to have an even tougher time of it. And per usual, the most privleged may not even feel any of this, which is likely part of why they find it so easy to legislate.


    (And in many places, when it comes to abortion, if I look it up in the phone book in many, many cities, I am going to see listings which also include CPCs: in some, that’s all I’ll see. Lord knows, if I pick wrongly, how many places I’ll find myself going to — arraging transportation to, childcare for, taking time off from work, having time pass in the meanwhile — before I hit one where I can actually get my method of contraception or a referral to a bonafide abortion provider.)

  • invalid-0

    “Polls consistently come about 50-50, give or take, on pro-choice vs pro-life.”

    No actually you are incorrect. The pro-choice take is in the majority. It is more like 60%+ for pro-choice and 40% for anti-abortion policies. So I think you are being a little dishonest in your analysis.

  • mh

    That’s a silly little objection. I still say that the difference has historically always been closer to 50-50, give or take, but for the sake of argument, I’ll grant your assertion of 60-40 in favor of the pro-choice position and still continue to maintain that this is nowhere near the consensus for murder or theft, which is probably something like 95-5 in favor of current laws, and thus is not sufficient to justify governmental force in favor of either side.

  • mh

    I’ll also point out that no prudence was shown by the Supreme Court before bucking the consensus and throwing out pro-life laws in — what was it? — 24 states or so? If the consensus was 60-40 for pro-choice in 1973, surely there was no need for a Supreme Court decision to ram it down everyone’s throat. Yes, things are different now, but that bit of judicial activism was a big factor in making abortion the inflammatory issue that it is today.

  • mh

    Of course the Yellow Pages can keep up. It’s not like things are changing every day. In my city, the same abortionists have been working and advertising for probably 20 years. It’s not like abortionists are going out of business all the time.

    But yes, I do agree that people in rural areas or seeking out unpopular treatment will sometimes have a hard time and that this may be a big problem. But I can’t believe that this could ever justify forcing, and I do mean FORCING, people to perform medical procedures they object to.

    Many doctors are approached some time in their careers with requests they feel they cannot honor. A doctor who refused the request of an 18-year-old to be permanently sterilized would be praised, not condemned. I know a tattoo artist who responds to people who request a face tattoo by telling them that he requires that they paint the tattoo on their face every single day for a full year before he will even begin to consider honoring their request.

    It’s easy to work up terrible worst case scenarios about what could happen if we can’t force people to perform abortions. But that little tactic works both ways. What’s next? Do we have to take away the tattooist’s right to refuse to scratch swastikas on people’s skin? Prevent doctors from refusing to take part in unneeded plastic surgery? Force nurses to participate in circumcisions they object to?

    Yes, it’s an imperfect world and there are going to be problems. With something as complex and with as little consensus as the abortion issue, I think it’s dangerous and foolhardy to try to use force to impose your morality on other people.

  • mh

    Harry, I think those are good ideas that can allay concerns without resort to force. I’m sure there are others that could be proposed. Our first choice should always be non-violence and non-force. Let’s try those things first before we start getting all law-happy.

  • mh

    Heather, I’ve also lived in rural areas with limited services and I’ve had health insurance for a total of about six months in my entire life. I fully appreciate how difficult and expensive it can be.


    I live now in a large western state with only about three abortionists in only two cities. Those abortionists serve the entire state with an area of more than 120,000 square miles, plus a good portion of five other neighboring states.


    Rural health care, as you say, is a problem in every medical specialty, not just reproductive health care. But if you believe that it’s important to get more doctors, more contraception advisors and more abortionists in more parts and more remote parts of the country, you should channel your energy and fundraising efforts into recruiting, training and placing those professionals.


    Forcing other people to do things they don’t agree with, even if their objection is irrational, is not only immoral, it’s foolhardy. Do you remember why we have an all-volunteer army? It’s because drafted killers don’t kill as much, as effectively, or as gladly. Do you really think that drafted doctors and abortionists would provide high quality medical care?


    For the sake of women’s health, we should be doing everything we can to ensure that they get their medical care from people who want to provide them with the services they seek. If you have a problem with people who don’t want to provide services, then you can yell at them and denounce them and do anything you like short of forcing them to cooperate with a procedure they object to.

  • invalid-0

    there are certain rights that transcend state’s rights. this is why we have a federal government. this is also why we have a constitution.
    our right to freedom of religion, and freedom from religion; our right to free speech; our right to vote; etc. these are rights that are so important to the united states, that the federal government has protected them. this is a way to make sure, for example, that if there is a population majority in a state that practices, let’s say for argument, christianity, that state can’t make a law agaisnt the minority of, say, muslims. this is the reason the supreme court decided as it did in roe v. wade. or, as you so beautifully say, “ram[med] it down everyone’s throat”.

  • heather-corinna

    I’ve no intent of forcing anyone to do procedures or prescribe birth control they don’t want to, nor of forcing them into jobs when they don’t want to do the job.  Umm…or yelling at them. I never suggested any such thing.  Nor did I suggest drafting anyone.


    However, I have a real problem with anyone taking a job when they have no intent of doing what it requires: no one is forced to be a healthcare provider, nor forced to work in abortion or contraceptive services.  If we want to be able to work by our personal ethics, then it’s our responsibility to only choose jobs where we can do so and where our ethics don’t stand counter to the job itself.


    I’m a Buddhist and a vegan in part for that reason.  If I go to work at a steakhouse — knowing full well I have an ethical objection to eating meat and that I don’t want to do much of my job in alignment with those ethics — and I refuse to talk about meat, serve meat, touch meat… what I expect to have happen is to be fired since I clearly am unable to do my job, and I’d find that to be reasonable on the part of my employer. If these was a clause to protect me from losing a job I took knowing full well I would refuse to do it, I’d find that completely ridiculous (especially since such a policy would keep those who WERE willing to do the job from having it).


    I’m not suggesting anyone be forced do to anything they don’t want to do.  Rather, I’m suggesting everyone acts like a responsible person, owns their own stuff, and if they want to work only within a certain framework, chooses our work accordingly, and in a way where our personal ethics don’t infringe upon someone else’s rights, particularly someone relying on me for services they have every right to expect to have provided or referred.  I’ve worked that out myself in my own life even though it certainly has required some sacrifices: surely others can do the same.


    And I’m afraid that as an activist working 2-3 jobs, my own time and energy has run thin when it comes to putting it one more place which requires more hours than exist in a day.   I’d like to hope that when counseling teens through these issues, those who are rural will consider working in those areas — and we’ve seen plenty of our users in time go into public health — but I’m afraid I’ve limits and that’s the best I can do at the moment. And again with that being-the-grownup bit.

  • mh

    Thanks for the well-written, dispassionate and thoughtful response, Heather.


    First off, I wasn’t trying to suggest that you need to put your money where your mouth is by volunteering in an underserved area. I fully appreciate that "professional activists," if I may use that term, have stretched themselves very thin and sometimes the most important thing is to resist the temptation to do more and ever more.


    I really get your point about the vegan in the steakhouse. I became a vegetarian after working for a summer as a janitor in a hamburger joint! Part of my job was to spray insecticide every morning over the entire premises, including in the kitchen, and every morning I watched that poison float down into the vats of cold grease that would be used to prepare french fries when the cooks came in. Really awful!


    Later I worked in a nice Mexican restaurant and was able to structure my duties such that I had almost no contact with meat, apart from occasionally schlepping a steak someone else had cooked from the grill to the waiter pickup station. But I did get drafted into carving turkeys one Thanksgiving. That was pretty gross. I’m afraid no one got very good cuts that day. My own resentment over having to work on a holiday sure didn’t help. 


    I’m not just reminiscing. I do have a point.


    I agree that it would be stupid for a vegan with strong beliefs to take a job in a steak house. I likewise agree that a pro-lifer who takes a job in an abortion clinic would be fatuous in the extreme to demand conscience protection. That’s patently preposterous.


    I would certainly not have taken a job in a steakhouse. There’s a Brazilian place nearby that serves nothing but gobs and gobs of meat. I wouldn’t have worked there either.  


    But I don’t believe that it was irrational for me seek a job in a restaurant whose menu was about 40% vegetarian. I was able to do a lot of good work there that didn’t involve any contact with meat. And I do think my employer could have shown a bit more sensitivity towards my visceral revulsion and found another cook for Thanksgiving day. After all, I was a valuable employee. Why risk losing me over a matter that could have been solved in a different matter?


    Likewise, I don’t believe that pro-life medical professionals should be banned from working in private practice, in medical firms, in hospitals, in public health clinics, or in specialties, just because they consider some medical practices to be abhorrent. Remember, from their point of view, they are not refusing medical treatment, because they don’t regard abortion in the absence of medical problems as medical treatment at all. They say it’s an act of destruction, not an act of healing. In the case of a healthy pregnancy, it is most definitely an act of destruction. You may say that this destruction is necessary to avoid a greater evil. But that sounds like an opinion to me. If you want to protect the right of women to choose procedures that other people think are immoral, it seems like you have to extend the analogous right to the people who can provide those services.


    I don’t think a reproductive health surgeon should be fired because he refuses to sterilize a young healthy 18-year-old and I don’t think a cook in a normal restaurant should be fired because he doesn’t want to cut and burn dead animals. At least not if there is something productive he can be doing for the same company. In the case of a steakhouse or an abortion clinic, there really isn’t anything productive they can do that won’t violate their conscience. Conscience protection can’t apply there. But that’s not the case in all restaurants and it’s not the case in all doctor’s offices. We should be finding ways to work together, not looking for ways to remold the medical profession to suit our political agenda.

  • heather-corinna

    To a large degree, I’m in agreement with all of what you’ve just said.  (And I say that actually having had an issue in the past with a conscience issue in the workplace before, though that issue was on behalf of clients and assuring that their needs and wants took precedence over administrative or worker needs and wants, so it was rather a different issue than these clauses posit, and — I have to say — more the kind of issue I think we should be having if and when we agree to be in service to patients and clients as our job.  I’m not going to go into detail on that issue, but suffice it to say, I think I get it.)


    My only real quibble is that I feel like we do have to class family planning clinics as places where a worker who is anti-contraception (or who has a problem with sex outside marriage, HIV testing, what have you) is the vegan in the steakhouse. The vast majority of the services family planning clinics provide ARE contraceptive services for those who do not wish to become or be pregnant, or who do not wish the be or become pregnant at the time of their visit. And if those clinics also advertise as doing things like giving referrals for abortion services, STI testing — other things workers may object to — I have a problem with legal mandates which say that those clinics must retain workers who refuse to work in alignment with the services a clinic exists to provide.


    But too, as I understand and interpret the HHS proposed policies, they WOULD protect a pro-lifer who went to work in an abortion clinic or a worker who worked in family planning who refused to provide family planning services. So, conscience clauses do and would, to my understanding, be applied there. And I have to be frank and say that given some of the grossly and purposefully manipulative and fraudulent tactics which have been employed by some groups and individuals who are pro-life, I also have no faith whatsoever that this clause would not be purposefully utilized by some expressly to disrupt those services.


    Flatly, that seems likely to be the primary motivation FOR this proposal, given the source. Particularly given the way Leavitt has responded to objections to the proposal — and the fact that this proposal has not come based on tons of healthworkers losing jobs or actually being forced to provide services, but quite out of thin air — make clear to me he’s got little to no interest in finding the sort of middle ground you and I appear to be discussing and in agreement with.

  • mh

    Good points, well expressed, minimal sarcasm. Hi Vivienne, it’s a pleasure to respond to this one.


    I think your analysis of the constitution here is mostly valid. I’m not so sure that’s how it was understood by the Founding Fathers but I agree that this is how most reasonable people understand the constitution now.


    But my point was that I’m personally very nervous about that idea. Whether there’s a right to abortion or not, I’m a little uncomfortable about legislating it in the absence of consensus. I think Roe vs Wade was an imprudent decision in its time and I think that a Human Life Amendment would be a disastrous move right now, even assuming it could get passed. Likewise, I don’t think pro-lifers should be stacking the Supreme Court to overturn Roe. That just seems to me to be a recipe for disaster.


    Calling Roe an act of "ramming it down" may have been a bit inflammatory, I admit. I’ll balance it by saying that I think the Human Life Amendment would be equally rammatory and inflammatory. 


    Maybe I’m wrong. Maybe these issues are so important that we should be using the law to forcibly educate people. But I’m not sure that approach has done much good in the deep South. A friend of mine just moved to a small town in southern Mississippi that to this day practices legal segregation. I was stunned to hear this, and had assumed that it was absolutely impossible today. Apparently not. What’s the alternative? Allow racism to smolder and destroy the country? I just don’t know.


    So anyway, I really don’t know the answer on this point. I just express my opinions, as they are now, subject to change, in the hope it will make some people think and maybe even help me achieve some clarity on the matter.


    That might seem to you like skirting or even trousering the issue. But I’d rather see what we can do with persuasion and reason — since that’s hardly even been tried — before we bring out the guns. Just a feeling.