In a parting gift to President Bush’s religious-right base, the Department of Health and Human Services has proposed new regulations that would grant sweeping rights to health care providers’ senses of conscience, enabling a broad range of professionals engaged in health care provision not only to refuse to provide but to refuse to refer for services that they found morally objectionable. But the proposal fails ever to consider not only the conscience of the patient seeking care, but also of the provider whose conscience directs her to provide care, whether others would refuse it.
Take, for example, Valley Hospital in Wasilla, Alaska. In 1992, a group of representatives from evangelical churches took control of the hospital’s board, and voted to bar doctors from performing abortions at the hospital except to save the woman’s life, in cases of extreme medical necessity, rape, incest, or fetal non-viability. In the New York Times, Dorothy Samuels reports that Dr. Susan Lemagie, then the only physician in Alaska who would perform elective abortions after 12 weeks, sued to overturn the policy. Rather than protecting Dr. Lemagie’s conscience, the hospital’s regulations impeded her ability to exercise her own moral sense. Reports Samuels,
Finally, in 1997, the Alaska Supreme Court ruled 4 to 0 in
Dr. Lemagie’s favor, holding that Valley Hospital was a “quasi public”
institution because it was the only hospital serving the community and
received millions of public dollars. As such, it could not deny a
woman’s “fundamental right” to abortion, which is secured by the broad
right to privacy embedded in the state’s Constitution.
Individual health care providers, however, still had the right to refuse to perform procedures they objected to.
Nonetheless, opponents of abortion rights used the Alaska decision to advocate for a federal law that would extend the right of individual providers to deny care to medical institutions, including HMOs and insurance plans. In 2004, a version of that bill, called the Weldon Amendment, passed. New HHS regulations, says Samuels, are essentially an extension of the Weldon Amendment.