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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
Background

A national battle over healthcare ethics threatens to put any conscience-guided Doctor in the Lions' Den

Reproduced with permission

Jonathan Imbody *

According to Peter Hildering, M.D., a family physician and leader of the Dutch Physicians Guild, Dutch Christian physicians and medical students find themselves in the "lions' den" of medical ethics challenges. Hildering says that his organization is receiving reports of discrimination against Christian physicians who buck a healthcare system that aggressively advances abortion and euthanasia.

Christopher Spayder's pulse quickened as he paused outside the examining room door. He grimaced as he glanced over the chart of his next patient-a sexually active, 16-year-old named Molly Ivans. Molly had called the office requesting contraception-something he personally opposed prescribing for her, based upon his religious convictions.

Dr. Spayder knew that, thanks to a new city law, following the dictates of his conscience could very well put his career in jeopardy. Ever since abortion rights advocates had pushed the Equality in Reproductive Healthcare Access Act through the City Council, Dr. Spayder had feared this moment. The Act mandated that all insurers offering prescription drug plans also had to cover prescribed contraceptives-including potentially abortifacient "emergency contraception."

After the bill passed, insurers had followed suit by issuing a memorandum requiring all participating healthcare providers to accommodate patients seeking contraception, regardless of the provider's personal ethical or religious objections.

A last-minute amendment to the bill, designed to defuse the protests of Catholic and evangelical opponents, had exempted only religious institutions whose "primary purpose" is to "inculcate religious beliefs." Of course, the cynically crafted amendment had only provided lip service to religious liberty while denying any real conscientious protections for the several Catholic, Baptist and Seventh Day Adventist hospitals in the city-or for individual healthcare professionals.

As he gingerly turned the knob on the exam room door, Dr. Spayder prayed that God might give him the wisdom and grace afforded to young Daniel of the Bible. Faced with disobeying the king's orders to eat food prohibited under God's law, Daniel had wisely proposed a test that had gotten him off the hook without violating his conscience. Then Dr. Spayder remembered another test of Daniel's conscience that landed him in the bottom of a pit looking up into the faces of hungry lions....

"Take no prisoners" approach

Dr. Spayder's* dilemma illustrates a coming crisis of conscience for Christian physicians and other healthcare professionals. While contraception mandates form the first line of attack in the battle, other ethical issues including abortion, physician-assisted suicide and virtually any faith-based healthcare conviction lie not far behind. The battle pits two autonomies against each other-the autonomy of the patient demanding products and services versus the autonomy of the healthcare professional following the dictates of his or her conscience.

The militant abortion rights groups behind this movement have long asserted that a woman's rights and needs far exceed those of her developing baby. Extending this logic, they are portraying religious and ethical objectors as an illegitimate impedance to what they view as a superior claim to women's reproductive rights. In other words, no baby, no physician, no hospital, no government dare stand in the way of a woman who wants subsidized birth control or abortion-on-demand.

Some of these activists employ a "take no prisoners" approach, showing little respect for religious faith or conscientious objection. Protestors outside a prolife event honoring a Catholic priest recently waved signs asserting, "If Priests Got Pregnant, Abortion Would Be a Sacrament" while chanting, "He, he, ho, ho! The right to life has got to go."

The Religious Coalition for Reproductive Choice (formerly the Religious Coalition for Abortion Rights) insists that "[religious] institutions...be held to their responsibility to serve the public rather than restricting services to conform with their own religious beliefs." The Coalition "oppose(s) religious exemptions for public institutions as a violation of both the separation of church and state and the right of individual conscience." This position, however, advocates violating the individual consciences of healthcare providers, while breaking down the Church's constitutional protections of religious liberty.

One activist, Lois Uttley, director of the MergerWatch project for the Family Planning Advocates of New York State, grouses that "nearly one in five beds is controlled by religious entities which can ban services such as contraception or sterilization that they find immoral." Uttley asserts, "Women are outraged that their health care can be influenced by religion."

A concerted national effort by abortion forces threatens to undermine conscience provisions for all healthcare providers. The National Abortion Rights Action League now offers "A Step-by-Step Guide to Expanding Health Insurance Coverage for Contraceptives." The kit is "designed to help organizers and activists develop campaigns to achieve social and political change...through a grassroots organizing campaign to eradicate the gender gap in insurance coverage for prescription contraceptives." No exceptions are made for those who, for reason of conscience, cannot ethically participate in contraception.

This "mandate movement" extends well beyond contraception to a host of healthcare ethical issues. A report by Uttley's MergerWatch Project highlighted "mounting concerns about religious health care institutions that refuse to provide reproductive health care and end-of-life services based on religious doctrine. Catholic religious and ethical directives, for example, prohibit abortion as well as referral for abortion, sterilization and contraception and emergency contraception to patients, regardless of the patients' preference or religious beliefs. End-of-life services include permitting patients to choose to end artificial nutrition and hydration."

A lesson from healthcare professionals in other countries can prove instructive for American doctors wondering what the future might hold regarding conscientious objection. In the Netherlands, for example, where "end of life services" spells euthanasia, physicians who abstain from the practice for the sake of conscience can pay a high price.

According to Peter Hildering, M.D., a family physician and leader of the Dutch Physicians Guild, Dutch Christian physicians and medical students find themselves in the "lions' den" of medical ethics challenges. Hildering says that his organization is receiving reports of discrimination against Christian physicians who buck a healthcare system that aggressively advances abortion and euthanasia.

"The position of doctors who don't want to perform euthanasia in Holland has become difficult," Dr. Hildering notes. "We surveyed our members to see if they met problems [of discrimination]. We heard both from nursing home physicians and GPs that there were problems in finding a place in which to practice. Students who want to specialize get questions about whether or not they want to work with euthanasia. And if not, in some places they are not welcome. It's the same thing with gynecology and abortion."

Dr. Hildering illustrates the problem with examples. "A general practitioner I know of says he doesn't want to work with doctors who don't perform euthanasia. He worries that the patients of the [conscientious objector] doctor will all come to him for euthanasia-and he's not happy with that. One of the groups in a rural area had a visit by the inspector for health because one of the doctors wouldn't perform euthanasia in that group. And he put it to that group of doctors that they had to look for a way for their patients to get euthanasia because he felt it was a normal medical practice to offer."

Dr. Hildering points to an ironic fact that keeps the lions at bay for now. "What helps protect us is that there's a shortage of doctors in Holland-that's the only reason. If the shortage is met, then I think the problems will occur very rapidly."

"Mandate" movement is gaining ground

The movement to mandate the provision of reproductive products and procedures is gaining ground, thanks to friends in high places. An explosive and precedent-setting decision in December 2000 by the Equal Employment Opportunity Commission (EEOC) helped fuel the drive for laws mandating contraception and abortion coverage. The federal commission's ruling against a health insurer who did not provide contraception coverage found "reasonable cause to believe that discrimination occurred under Title VII of the Civil Rights Act of 1964, as amended, in two charges challenging the exclusion of prescription contraceptives from a health insurance plan." The EEOC warned healthcare insurers and providers to get in line with the federal agency's views, or face the consequences.

"Where a woman visits her doctor to obtain a prescription for contraceptives," the EEOC wrote, "she must be afforded the same coverage that would apply if she, or any other employee, had consulted a doctor for other preventive or health maintenance services." Since EEOC members viewed pregnancy as a virtual disease, disease-preventing coverage (contraception) seemed a rational requirement.

Abortion advocates like NARAL President Kate Michelman hailed the EEOC's action. "Contraception," argues Michelman, "is basic health care for women and is essential to preventing unintended pregnancy. Unfortunately, many insurance companies exclude contraception from the list of prescription medications they cover, unfairly forcing women to cover the cost of contraception themselves. The EEOC ruling exposes this inequity for what it is: blatant sex discrimination."

On June 12, 2001, U.S. District Judge Robert S. Lasnik sounded the trumpet in the charge against conscience in a widely watched lawsuit against Bartell Drug Company. In the first federal challenge to employers who do not cover birth control, Judge Lasnik ruled that Bartell must include contraceptives for women in its employee health insurance plan. A pharmacist had contended that Bartell's policy violated the federal Pregnancy Discrimination Act.

"Although the plan covers almost all drugs and devices used by men," Lasnik wrote, "the exclusion of prescription contraceptives creates a gaping hole in the coverage offered to female employees, leaving a fundamental and immediate health care need uncovered."

Citing the EEOC decision and federal court decision, Washington Post columnist Judy Mann writes, "Together, these findings should put the matter to rest once and for all by forcing Congress to require all insurers to include contraception in their drug coverage. As a practical matter, the ruling tells employers that they had better shape up on their insurance coverage or face legal action under the Civil Rights Act." Abortion rights activists are spinning the issue as one of equal rights, decrying the injustice of providing coverage for Viagra for men but not contraception for women. Ironically, the word "choice" in the abortion mantra has been apparently replaced by the word "coercion."

CMA works to protect healthcare right of conscience
While the mandate movement marches on, prolife advocates and Christian healthcare professionals are rallying to respond. The Christian Medical Association has joined the Christian Legal Society and other national organizations based in Washington, D.C., in a working group on the healthcare right of conscience. The group has been developing strategies and legislation behind the scenes, although the controversy has already erupted into debates in national media.

The mission of the Health Care Right of Conscience (HCRC) working group is "to develop public policy, through state and federal legislation, as well as executive and judicial decisions, supporting the civil right of all health care providers, including the health insured and the health insurer, to refuse to counsel, advise, pay for, provide, perform, assist or participate, either directly or indirectly, with such health care services that violate such providers' religious or moral conscience, and to prohibit all forms of discrimination, coercion, disability or liability upon such providers by reason of such exercise of conscience."

CMA Ethics Commission chairman Robert Scheidt, M.D., put the conscience issue in perspective. "First of all," he said, "the right of conscience is a human right-not just a doctor right or patient right. It applies to all persons equally, and to deny it is to deny a fundamental aspect of our humanity. How can any scientific discipline survive the moral diminishing of its practitioners? Would not the violation of conscience, made necessary or put into practice in one area, lead to tacit permission to do the same in other areas?"

Scheidt continued, "Secondly, to cause another person to violate his conscience is also an act of diminishing that person as human. To put people into positions of costly moral choice, I suppose, is to experience the human dilemma. But to do it deliberately, or not to avoid it if possible, is wrong."

Both education and legislation can help protect the inalienable right of all healthcare professionals, providers and participants to follow their conscience. Americans of all persuasions must treasure and protect our foundation of freedom in the pursuit of one's own religious and ethical convictions. Legislation may now be required to protect the civil right of healthcare professionals, providers, and participants to refuse to counsel, advise, pay for, provide, perform, assist or participate, either directly or indirectly, with such services that violate such persons' religious or moral convictions; and to prohibit all forms of discrimination, disqualification, coercion, disability or liability upon such persons by reason of such refusal.


Note
*Doctor Spayder's scenario is fictitious, but based upon political realities. The District of Columbia City Council actually passed a similar bill on July 11, 2000. The D.C. mayor quietly pocket-vetoed the bill only after the U.S. Congress threatened to intervene.

 

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