HHS rules prevent providers from being forced to do things that violate moral convictions

The Hill

Reproduced with permission

Diana Ruzicka*

In the April 4, 2018 article, HHS rule lowers the bar for care and discriminates against certain people, nursing leaders, Pamela F. Cipriano and Karen Cox, wrote that the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) Proposed Rule: Protecting Statutory Conscience Rights in Health Care; Delegations of Authority expands the ability to discriminate, denies patients health care and should be rescinded. These accusations are unfounded and the rule should be supported.

What the rule does is “more effectively and comprehensively enforce Federal health care conscience and associated anti-discrimination laws.” It is not an effort to allow discrimination but an effort to prevent it by enforcing laws already on the books and gives the OCR the authority to oversee such efforts. This is something that nursing should encourage because it supports the Code of Ethics for Nurses (code).

The code reminds us that, “The nurse owes the same duties to self as to others, including the responsibility to promote health and safety, preserve wholeness of character and integrity, maintain competence and continue personal and professional growth.”

It is precisely because nurses are professionals who hold themselves to these standards that patients have come to see nurses as persons worthy of their trust, persons in whose hands they are willing to place their lives. Being granted by the public this weighty and solemn responsibility is humbling and must never be taken lightly. Thus the nurse’s duty to practice in accord with one’s conscience, to be a person of wholeness of character and integrity, is recognized by the.

It is odd that, despite supporting a nurse’s duty to conscience and the right to refuse to participate in an action to which the nurse objects on the grounds of conscience, Cipriano and Cox insist that the nurse, must assure that others make the care available to the patient. This suggests a failure to recognize that referring the patient to someone who will do the objectionable act in place of the nurse can make the nurse complicit.

The culpability of complicity is well recognized in law and ethics, as an accomplice is liable to the same extent as the person who does the deed. Thus, to make a referral and be complicit in an act to which the nurse conscientiously objects, also violates conscience. We doubt nursing leaders actually support this, as the consequences would be chilling.

When persons are made to violate their conscience, to set it aside, to silence it, moral integrity is eroded and moral disengagement progressively sets in. To move from caring for our fellow human beings to acting on them in ways that our conscience tells us we should not, requires powerful cognitive manipulation and restructuring to free ourselves of the guilt associated with this violation of our deeply held moral or religious beliefs.

Moral disengagement has frightening negative consequences, namely a pernicious dehumanization of persons, including oneself and of society as a whole. Rather than a nurse being someone of moral courage, ethical competence and human rights sensitivity, as our code directs, a nurse would have to be someone who is willing to surrender their conscience to expediency, powerful others, or whatever happens to be permitted by law at the time and place.

No longer would patients find that nurses are persons they can trust. It is precisely because nurses practice in accordance with their conscience that the public continues to grant them high scores on honesty and ethics.

None of this is to say that nurses may abandon patients. By promptly seeking a transfer of assignment that does not involve the objectionable act or by transferring the patient elsewhere without making a referral, the nurse continues to uphold the code by “promoting, advocating for and protecting the rights, health and safety of the patient [and, at the same time,] preserving wholeness of character and integrity.”

Clearly, refusal to care for a patient based on an individual attribute is unjust discrimination and has no place in nursing or health care. But that is not what the rule does. It protects the right to object to being forced to participate in an act that violates a person’s deeply held moral convictions or religious beliefs and from discrimination as a result of one’s refusal to participate in such an act.

To call for rescinding the rule, whose purpose is to protect this fundamental human right, would be short-sighted and could make unjust discrimination more likely and harm not only nursing but also the patients we serve.

 

Oklahoma Officials Endorse Nitrogen Executions As ‘Humane,’ But Some Medical Experts Aren’t Sure

Stateimpact Oklahoma

Quinton Chandler

Oklahoma wants to go where no state has gone before: Executing death row inmates with nitrogen gas. Officials say nitrogen will bring quick, painless deaths, but the research is slim — and it has never been used in U.S. executions.

The case for nitrogen hypoxia sounds simple. Nitrogen is already in the air we breathe, but, as long as humans get the right mix, nitrogen is safe. The state wants to make death row inmates breathe pure nitrogen.

State Sen. Ervin Yen, R-Oklahoma City, is a cardiac anesthesiologist who signed his name to the bill that made nitrogen hypoxia a legal execution method in 2015. He says the inmates would die from “lack of oxygen,” not exposure to nitrogen. . . [Full text]

Divisions, New and Old — Conscience and Religious Freedom at HHS

Lisa H. Harris

January, the U.S. Department of Health and Human Services (HHS) announced the creation of its Conscience and Religious Freedom Division, explaining that it will allow HHS’s Office of Civil Rights to “more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom” and will ensure that “no one is coerced into participating in activities that would violate their consciences, such as abortion, sterilization or assisted suicide.”1 Responses were as expected: religious conservatives hailed the new division as a needed intervention; public health and clinical leaders and advocates decried it, worrying about its impact on access to care and harm to patients.

HHS leaders’ comments to date suggest that they are uninterested in discrimination against health care providers whose consciences compel them to provide care, and uninterested in injuries to patients caused by care refusals. This framing makes conscience yet another issue dividing Americans, largely along partisan lines.


Harris LH.  Divisions, New and Old — Conscience and Religious Freedom at HHS. N Eng J Med 2018 Apr 12;378(15):1369-1371. doi: 10.1056/NEJMp1801154. Epub 2018 Mar 14

Opposing Medical Conscience with a Soft Touch

National Review
Reproduced with permission

Wesley J. Smith

When the Department of Health and Human Services announced its intention to create a new office to emphasize the protection of medical conscience, the screaming from the usual suspects was so loud one would have thought Roe v. Wade had been overturned.

Now, The New England Journal of Medicine has published an abstruse opinion piece by one Lisa Harris, a professor concerned with “issues along the reproductive justice continuum,” whatever that means.

I bring this up because medical conscience is a burning issue for pro-life medical professionals and those who believe in Hippocratic medicine. The issue is whether doctors, nurses, pharmacists, and others can be forced to participate in requested interventions with which they have a strong religious or moral objection — such as abortion, assisted suicide, and suppressing normal puberty in children with gender dysphoria.

But reading Harris, you would think it was just about “partisans” not understanding the gray areas and nuances of contentious social issues. From, “Divisions Old and New–Conscience and Religious Freedom at HHS”:

I feel an angry argument building in response to HHS’s one-sided framing. But I resist it. Because my challenge these days is to avoid further entrenching polarized positions and to reject the divisiveness that poisons contemporary life. Is it possible, once again, to hold in tension seemingly opposite ideas about abortion? Can we understand abortion as both something that “stops a beating heart” and a fundamental right, rather than insisting it’s only one or the other?

But the conscience issue isn’t about whether we can all just get along and understand people have differences of opinion. It isn’t about “holding in tension seemingly opposite ideas.” It is about protecting doctors from being forced to take a human life or engage in another act in the clinical setting that is violative of their faith or moral beliefs.

Harris just doesn’t get it — or doesn’t want to:

Abortion and parenthood are not mutually exclusive; loving children and ending pregnancies are compatible in patients’ lived experience.

So is loving abortion work and questioning it: abortion providers might express an enormous sense of pride, purpose, and fulfillment in their work, and also say they felt weak-kneed the first time they saw a second-trimester abortion. Some feel sad that in different circumstances, many women would continue their pregnancies, in particular if poverty and economic strain were not issues. There is sometimes a point at which, when pressed, ardently pro-choice caregivers become uncomfortable with abortion. For some, it is a matter of pregnancy duration; for others, the circumstances of an abortion, such as sex selection.

Conversely, some caregivers whose religious beliefs lead them to strongly oppose abortion nevertheless offer assistance. Some religious nurses give medications and offer comfort, compassion, and care during an abortion because they see these tasks as shared purposes of nursing and religion. Sometimes doing so requires “sitting with discomfort in real time” and holding “the tension of two contradictory positions simultaneously.”

To which I respond, bully for them, but so what?

Harris should read Ezekiel Emanuel’s article in the NEJM from not too long ago advocating that doctors who refuse to participate in a legal procedures requested by the patient should be kicked out of medicine. No balancing of “tensions” and “sitting with discomfort in real time” for him!

And there is nothing in Harris’s piece to make me think she isn’t just as opposed to medical-conscience rights as Emanuel. She just says it indirectly, in a passive-aggressive manner, and with a softer touch.

I believe the real reason the medical establishment, the secular Left, and bioethicists like Emanuel and (I believe) Harris oppose strong legal conscience protections is precisely due to the powerful moral message sent when a respected doctor or nurse says to a patient: “No. I can’t do this thing you request. It is wrong.”

There is an old saying in pro-abortion advocacy: “If you don’t believe in abortion, don’t have one.”

To which I add a medical-conscience corollary: If you want an abortion, don’t force a doctor to give you one.

Sometimes comity requires living with unambiguity too.

Hawaii legalizes assisted suicide: Refusing to refer for suicide may incur legal liability

Sean Murphy*

Assisted suicide will become legal in Hawaii on 1 January, 2019, as a result of the passage of the Our Care, Our Choice Act. Introduced in the state House of Representatives only in January, it passed both the House and Senate and was approved by Governor David Ige on 5 April. Beginning next year, physicians will be able to write prescriptions for lethal medications for Hawaiian residents who are capable of informed consent, who are at least 18 years old, and who have been diagnosed with a terminal, incurable disease expected to result in death within six months.1

And beginning next year, Hawaiian physicians who refuse to facilitate assisted suicide by referring patients to a willing colleague may face discipline — including expulsion from the medical profession — or other legal liabilities. Hawaii could become one of only two jurisdictions in the world where willingness to refer patients for suicide is a condition for practising medicine.2 . . . [Full text]

‘Medical Conscience’ Is Becoming a Partisan Controversy

National Review
Reproduced with permission

Wesley J. Smith

Should doctors and nurses be forced to participate in interventions they find morally abhorrent or unwarranted? As one example, should ethical rules require pediatricians to medically inhibit normal puberty as demanded by parents to “treat” their child’s gender dysphoria — even if they are morally opposed to the concept and/or the supposed treatment?

Some say yes. Thus, influential bioethicist Ezekiel Emanuel argues that medical professionals are obligated to accede to the patient’s right to receive legal interventions if they are generally accepted within the medical community — specifically including abortion. Emanuel stated doctors who are morally or religiously opposed, should do the procedure anyway or procure a doctor they know will accede to the patient’s demands. Either that, or get out of medicine.

Supporters of “medical conscience” argue that forcing doctors to participate in interventions they find morally abhorrent would be involuntary medical servitude. They want to strengthen existing laws that protect doctors, nurses, and pharmacists’ who refuse participation in legal interventions to which they are morally or religiously opposed.

Now, medical conscience looks to become another battlefront in our bitter partisan divide. After the Trump administration announced rules that will place greater emphasis on enforcing federal laws protecting medical conscience, Democratic state attorneys general promised to seek a court order invalidating the new rule. From the New York Law Journal story:

But 19 state attorneys general, led by New York’s Eric Schneiderman, argue that it is the patients who will be discriminated against under the proposed rule. This is particularly true, they argue, in the cases of marginalized patients who already face discrimination in trying to obtain health care, such as lesbian, gay, bisexual and transgender patients and male patients seeking HIV/AIDS preventative medications, according to the comments filed in opposition to the rule.

“If adopted, the proposed rule … will needlessly and carelessly upset the balance that has long been struck in federal and state law to protect the religious freedom of providers, the business needs of employers, and the health care needs of patients,” they state.

The stakes can only increase as moral controversies in health care intensify in coming years. As just two examples, some bioethicists are lobbying to enact laws that would give dementia patients the right to sign an advance directive requiring nursing homes to starve them to death once they reach a specified level of cognitive decline. There are also increasing calls to do away with the dead-donor rule in transplant medicine so that PVS patients can be organ-harvested while still alive

If these acts become legal, should doctor and nurses who practice in these fields be forced to participate? If Emanuel’s opinion prevails, the answer could be yes. If medical professionals are protected by medical conscience legal protections, the answer would be no.

Medical conscience is not just important to personally affected professionals. All of us have a stake. Think about the potential talent drain we could face if we force health-care professionals to violate their moral beliefs. Experienced doctors and nurses might well take Emanuel’s advice and get out of medicine — while talented young people who could add so much to the field may avoid entering health-care professions altogether.

Comity is essential to societal cohesion in our moral polyglot age. Medical conscience allows patients to obtain morally contentious procedures, while permitting dissenting medical professionals to stay true to their own moral and religious beliefs. I hope the Democrats’ lawsuits are thrown out of court.

Laxalt signs on to letter supporting “conscience protections” for health workers with religious objections

The Nevada Independent

Michelle Rindels

Republican gubernatorial candidate and Attorney General Adam Laxalt has signed on to a letter supporting a new set of regulations that aims to protect health workers who don’t want to perform abortions, help transgender patients transition or take other actions because of religious or moral objections.

Laxalt joined 16 other attorneys general in signing the March 27 letter to Alex Azar, secretary of the U.S. Department of Health and Human Services. The letter lauds the “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority” regulations, saying it’s important to return to obeying conscience protections enacted by Congress and restore the rule of law in Washington. . . [Full Text]

19 State Attorneys General Declare Opposition to HHS’ Proposed Conscientious Objection Rule

New York Law Journal

Kristen Rasmu

A U.S. Department of Health and Human Services proposed rule that would more vigorously protect health care providers’ ability to deny coverage in certain circumstances because of moral or religious beliefs should be withdrawn, according to a coalition of state attorneys general.

The proposed rule would strengthen the enforcement of existing regulations that allow providers to invoke conscientious objections as a basis for refusing to provide care that involves certain medical issues, including abortion, sterilization, assisted suicide and others. It also would allow individual providers to object to informing patients about their medical options or referring them to providers of those options. . . [Full Text]

NH House Roundup: House kills ‘medical conscience’ bill, restores rail study

New Hampshire Union Leader

Dave Solomon

CONCORD — A bill that would allow medical professionals to exercise their “rights of conscience” failed in a 218-109 vote in the House of Representatives on Thursday.

The bill, HB 1787, would allow medical professionals to refuse any procedure that goes against their personal beliefs, including abortion, providing contraceptives or contraceptive counseling.

“In our state right now, there are no rights of conscience protections for medical people,” said Rep. Kurt Wuelper, R-Strafford. “Doctors are required in many areas to participate in and perform procedures that violate their consciences. That’s not right.” . . .[Full Text]

Assisted-Suicide Pushers Want Forced MD Participation

National Review
Reproduced with permission

Wesley J. Smith*

Assisted-suicide advocates pretend they want assisted suicide limited to the terminally ill.

They pretend that they favor strict guidelines.

And they pretend they would never want doctors forced to participate in intentionally ending the life of a patient. Indeed, the laws they have passed all contain conscience protections.

Except, sometimes they show their true hands. For example, when the Canadian Supreme Court imposed a broad right to lethal-injection euthanasia — certainly not limited to the dying — Compassion and Choices (formerly the Hemlock Society) issued a laudatory press release — later scrubbed because it told the truth about the movement’s true goals.

And now, Compassion and Choices — again, which has included conscience protections in laws it sponsored as a necessary predicate to passage — has come out strongly against a proposed Trump-administration office in HHS to protect medical professionals from forced participation in procedures against their consciences and/or religious beliefs. From an email sent to its supporters (my emphasis):

The new division marks one of the greatest threats we’re facing to the future of the end-of-life choice movement and patient-centered care.

Under the HHS proposed rules, providers who object to various procedures could impose their own religious beliefs on their patients by withholding vital information about treatment options from them — including options such as voluntarily stopping eating and drinking, palliative sedation or medical aid in dying. And your federal tax dollars will be used to protect physicians who make the unconscionable decision to willfully hold back information from a patient and abandon them when they are at their most vulnerable.

This is unacceptable and needs to be stopped.

Note the warning that conscience protections threaten “the future” of the assisted-suicide movement. It is abundantly clear that these suicide advocates believe forcing doctors to participate in suicide is essential to implementing their lethal agenda.

C & C already tried to impose such a duty on doctors in Vermont in support of a regulation that sought to force doctors to share information on assisted suicide with patients. That violated the assisted-suicide law’s conscience protections. Dissenting doctors sued and forced the bureaucrats to retreat. C & C tried to intervene legally to (unsuccessfully) thwart that settlement.

So, this is the truth: If C & C prevails in legalizing assisted suicide (and eventually, euthanasia) across the country, pressure will soon begin to force dissenting MDs, nurses, and pharmacists to either get on the death train or get out of medicine.

For those with eyes to see, let them see.

 

Accessed 2018-03-28