Update on American HHS birth control mandate controversy: February, 2013

Lawsuits against a federal regulation continue to be filed  and are at various stages of litigation and appeal.  The contested regulation requires employers of 50 or more people to provide health insurance coverage for contraceptives, embryocides and surgical sterilization, even if the employers object to the services for reasons of concience.  As a result of the lawsuits and widespread protests, the Obama
administration has proposed amendments to the  regulation, which have been rejected as unsatisfactory by its opponents (New York Times). Judges are split on the issue.  (Los Angeles Times) (For a map and up-to-date overview of lawsuits filed against the U.S. Department of Health and Human Services, see the Becket Fund’s 
HHS Information Central
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Twin protection of conscience bills introduced in Tennessee

Senate Bill 514 and House Bill 1185, identical bills that have been introduced in the Tennessee General Assembly, provide protection for students in post-secondary psychology, social work or counselling programmes who, by reason of religious beliefs, are unable to provide a client with the kind of counselling or therapy being sought.  The bills require objecting students to refer clients to another counsellor.

Conscientious refusals and reason-giving

Jason Marsh

Bioethics. 2013 Feb 28. doi: 10.1111/bioe.12012. [Epub ahead of print] PubMed
PMID: 23445457

Abstract
Some philosophers have argued for what I call the reason-giving requirement for conscientious refusal in reproductive healthcare. According to this requirement, healthcare practitioners who conscientiously object to administering standard forms of treatment must have arguments to back up their conscience, arguments that are purely public in character. I argue that such a requirement, though attractive in some ways, faces an overlooked epistemic problem: it is either too easy or too difficult to satisfy in standard cases. I close by briefly considering whether a version of the reason-giving requirement can be salvaged despite this important difficulty. [Full Text]

Conscience in health care and the definitions of death

Yutaka Kato

Croat Med J. 2013  Feb;54(1):75-7. PubMed PMID: 23444250; PubMed Central PMCID: PMC3583397

Abstract

Brain death or neurologic death has gradually become recognized as human death over the past decades worldwide. Nevertheless, in Japan, the New York State, and the State of New Jersey, one can be exempt from death determination based on neurologic criteria even in the state of brain death. In Japan, the 1997 Act on Organ Transplantation legalized brain death determination exclusively when organs were to be procured from brain-dead patients. Even after the 2009 revision, the default definition of death continued to be cardio-pulmonary criteria, despite the criticism.

The cases of Japan and the United States provide a good reference as social experiments of appreciating conscientious or religio-cultural dimensions in health care. This text theoretically examines the 1997 Act on Organ Transplantation of Japan and its 2009 revision, presenting some characteristics of Japan’s case compared to American cases and the implications its approach has for the rest of the world. This is an example in which a foreign idea that did not receive widespread support from Japanese citizens was transformed to fit the religio-cultural landscape.

Brain death (neurologic death) has gradually been recognized as human death over the past decades worldwide. Nevertheless, in Japan, the New York State, and the State of New Jersey, one can be exempt from death determination based on neurologic criteria even in the case of brain death. The New York State established the Guidelines for the Determination of Brain Death (1987, 1995, 2005) to accommodate religious or moral objections to brain death. The State of New Jersey also enacted the Declaration of Death Act (1991) to accommodate religious objections to brain death. All this resulted from the accommodation of religious and moral objections to neurologic criteria.

Hans-Martin Sass argued for “a formula for a global Uniform Determination of Death statute, based on the ‘entire brain including brain stem’ criteria as a default position, but allowing competent adults by means of advance directives to choose other criteria for determining death during the process of dying.” These cases provide a good reference as social experiments in order to evaluate this formula.

In the text, the term “conscience” or its adjective form is chosen as a superordinate concept to moral/religious belief according to conventional usage. Conscience might appear universal whereas religio-cultural dimension differs among nations. In this text, conscience is considered to manifest itself within different societal traditions.[Full Text]

U.S. House of Representatives Appropriations Bill

Appropriations for the Departments of Labor, Health and Human Services, and  Education, and related agencies (2013)

An appropriations bill authorizes funding for federal departments of the U.S. government. Since the departments require funds to operate, one method of securing statutory support for freedom of conscience is to attach conditions to an appropriations bill.  That is the purpose of Sections 537 and 538.

Confronting Conscientious Objection

  • Maggie Little* | Conscientious objection. . . is not something lightly invoked. Its legitimate exercise brings with it strong obligations. Objecting providers must disclose their limitations early and often to minimize patient burdens. And they must convey those restrictions with compassion and respect. . . . The very premise of protecting conscientious refusal, after all, is that deeply good and reasonable people disagree on the issue.
    Full Text

New York Hospital Agrees to Respect Rights of Pro-Life Nurses

The Foundry

Thomas Messner

Mount Sinai Hospital in New York has agreed to additional policy and procedure changes to protect the conscience rights of pro-life nurses and other employees as a result of a federal investigation.

In 2009, the hospital allegedly forced a Catholic pro-life nurse to assist in an abortion in violation of the nurse’s religious beliefs. Read more . . .

 

Letter from Archbishop to Congress seeks support for freedom of conscience

Writing on behalf of the US Conference of Catholic Bishops Ad Hoc Committee on Religious Liberty, Archbishop William E. Lori has asked Congress to pass measures in an appropriations bill.  One “clarifies current nondiscrimination laws to improve protection of individuals and institutions that decline involvement in abortion, allowing the victims of discrimination to vindicate their rights in court.”  The other merges the Hyde/Weldon amendment with a 1996 law that prevents people from being forced to participate in abortion training.

“We assume no one in Congress opposes the idea that people whose civil rights have been violated have a right to go to court. So this provision should be accepted without serious controversy,”  [Text of letter]

 

Mt. Sinai Ends Forced Abortion-Participation Policy

 News Release

Alliance Defending Freedom

A newly completed U.S. Department of Health and Human Services investigation of New York’s Mt. Sinai Hospital has resulted in additional policy and procedure changes to ensure that medical personnel are not forced to participate in abortions. Alliance Defending Freedom attorneys representing a Mt. Sinai nurse requested the HHS Office of Civil Rights investigation after the hospital forced her to assist in an abortion in violation of her religious beliefs in 2009.

The changes come in addition to a new policy the hospital adopted after Alliance Defending Freedom attorneys filed a lawsuit on behalf of the nurse, Cathy Cenzon-DeCarlo.

“Pro-life medical personnel shouldn’t be forced to participate in abortions, and the new policies and procedures at Mt. Sinai reflect that,” said Senior Legal Counsel Matt Bowman. “The hospital seems to have decided to do the right thing and respect the conscience rights of its employees, who are protected by both federal and state law. We will continue to monitor the situation to make sure that the new policy is followed.”

Mt. Sinai’s policy revision states, “It is the legal right of any individual to refuse to participate in these procedures.” The policy applies regardless of whether the abortion is classified as an elective or emergency procedure and provides a process for “alternative coverage” in the event a staff member opts not to participate.

As a result of the HHS investigation, Mt. Sinai agreed to go further by putting in writing that it will abide by federal conscience protection laws, train employees about the hospital’s obligation to those laws and how to properly keep records of those who are objecting or not objecting to participating in abortions, and update a Human Resource policy to state that the hospital will not engage in any form of employment discrimination based on an employee’s refusal to participate in an abortion.

Administrators at Mt. Sinai Hospital threatened DeCarlo with disciplinary measures in May 2009 if she did not honor a last-minute summons to assist in a scheduled late-term abortion. Despite the fact that the patient was apparently not in crisis at the time of the surgery, the hospital insisted on her participation in the procedure on the grounds that it was an “emergency,” even though the procedure was not classified by the hospital as such. The hospital has known of the Catholic nurse’s religious objections to abortion since 2004.

Alliance Defending Freedom attorneys asked HHS to investigate in March 2010 and filed, together with lead counsel and allied attorney Joseph Ruta, the lawsuit Cenzon-DeCarlo v. The Mount Sinai Hospital in Kings County Supreme Court the following month. The lawsuit argues that Mt. Sinai violated state conscience laws as well as state laws against religious employment discrimination and intentionally inflicting emotional distress on an individual. The suit, which is still ongoing, also includes five other claims based on DeCarlo’s coerced participation in the abortion. A federal court dismissed Cenzon-DeCarlo’s federal suit filed in July 2009.

 

When Conscience and Duty Conflict: A Health Care Provider’s Moral Dilemma

Verdict

David S. Kemp

Most of the time, physicians and other health care providers have coincident legal and ethical duties to perform their professional job functions. An emergency room physician’s obligation to treat patients admitted to the ER derives both from law and from ethics. A nurse’s duty to prepare a patient for surgery likewise comes from both sources. In some instances, however, a provider’s own personal beliefs may mandate one behavior while law and duty require another.

The most salient and most commonly discussed example in this context is that of abortion, and with regard to that procedure, the law is relatively clear: Providers who are morally opposed to abortions or sterilization may legally refuse to participate in those procedures. Similarly, in states that allow physician-assisted suicide, physicians who have moral objections to the practice are not legally obligated to engage in it simply because a patient requests it. In these cases, the law protects the provider’s right of conscience. . . Read More . . .