‘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.

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

Lisa H. Harris

In 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. . .


Harris LH.  Divisions, New and Old — Conscience and Religious Freedom at HHS.  N Engl J Med 2018; 378:1369-1371. DOI: 10.1056/NEJMp1801154

The War on the Hippocratic Oath

First Things

Wesley J. Smith

The screaming was so loud, you would have thought that the Trump administration had overturned Roe v. Wade. It hadn’t, of course. But it had directed needed attention at the existing legal protection that allows doctors and nurses to refuse to participate in abortions without fear of firing or other job sanctions. This protection is sometimes called “medical conscience rights.”

The occasion for the uproar? The Department of Health and Human Services announced its intention to create a new office of Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR) to enforce medical conscience. It is worth noting that this proposed action will not change the law. . . [Full text]

 

HHS Announces New Conscience and Religious Freedom Division

News Release

For immediate release

U.S. Department of Health and Human Services

Today, the U.S. Department of Health and Human Services (HHS) is pleased to announce the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR).  The announcement will take place at an event at HHS headquarters from 10:30 a.m. to noon.  It will be livestreamed here. Speakers will include Acting Secretary Eric D. Hargan, House Majority Leader Kevin McCarthy, Representative Vicky Hartzler, Senator James Lankford, OCR Director Roger Severino, and special guests.

The Conscience and Religious Freedom Division has been established to restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.  OCR is the law enforcement agency within HHS that enforces federal laws protecting civil rights and conscience in health and human services, and the security and privacy of people’s health information.  The creation of the new division will provide HHS with the focus it needs to more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom, the first freedom protected in the Bill of Rights.

OCR already has enforcement authority over federal conscience protection statutes, such as the Church, Coats-Snowe, and Weldon Amendments; Section 1553 of the Affordable Care Act (on assisted suicide); and certain federal nondiscrimination laws that prohibit discrimination on the basis of religion in a variety of HHS programs.

OCR Director Severino said, “Laws protecting religious freedom and conscience rights are just empty words on paper if they aren’t enforced. No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice. For too long, governments big and small have treated conscience claims with hostility instead of protection, but change is coming and it begins here and now.”

Acting HHS Secretary Hargan said, “President Trump promised the American people that his administration would vigorously uphold the rights of conscience and religious freedom.  That promise is being kept today. The Founding Fathers knew that a nation that respects conscience rights is more diverse and more free, and OCR’s new division will help make that vision a reality.”

Contact: Office for Civil Rights
202-774-3009

arina.grossu@hhs.gov

To learn more about the new Conscience and Religious Freedom Division, visit us at www.hhs.gov/conscience.

To file a complaint with OCR based on a violation of civil rights, conscience or religious freedom, or health information privacy, visit us at https://www.hhs.gov/ocr/complaints.

No, Politico, Conscience Protections Are Neither ‘So-Called’ Nor ‘Controversial’

There is simply no historical ground upon which Politico can claim that protecting the right of medical professionals not to participate in abortion has been ‘controversial’ since Roe v. Wade.

The Federalist
Reproduced with permission

Casey Mattox

Government shouldn’t force people to violate their consciences. Until recently, that opinion hasn’t been particularly controversial, even where actual controversial issues like abortion were involved. One can support abortion and still think government shouldn’t discriminate against medical professionals who don’t perform abortions.

But if you want to gin up opposition to something, it presumably helps to pretend that it’s your opponent who is the extremist. You can’t very well admit that it’s your own opinion that is historically extreme and your opponent who has history on his side. That’s a much harder sell.

Perhaps this is why, in a story yesterday about the new U.S. Department of Health and Human Services office to address conscience and religious freedom for medical professionals and institutions, Politico casually dropped this nugget: “So-called conscience protections have been politically controversial since shortly after Roe v. Wade legalized abortion in 1973.”

This claim may be politically useful, but it is demonstrably false. At the risk of appearing to repeatedly bludgeon this false narrative to death, it’s important to understand just how inexcusably wrong this instance of fake news is, and how these sorts of so-called “mistakes” drive narratives that create today’s politics.

Shortly after Roe v. Wade

Weeks after the Supreme Court released its decision in Roe v. Wade, Congress enacted the first of the federal laws aimed at protecting conscience in light of this newly minted “right” to abortion. The Church Amendment, named for its sponsor, Idaho’s longtime Democratic Senator Frank Church, ensured that Catholic hospitals could continue to provide health care to millions of Medicaid patients without being forced to also perform abortions.

That provision passed 372-1 in the House and 92-1 in the Senate. Noted right-winger Sen. Ted Kennedy spoke in favor of the law on the floor of the Senate, calling it necessary “to give full protection to the religious freedom of physicians and others.”

A Democrat-controlled Congress added additional “so-called conscience protections” to the Church Amendment for these individual medical professionals and in federally funded programs over the next few years. The idea that these laws were controversial would have been a surprise to the bipartisan coalitions in Congress voting for them.

In 1992, Nadine Strossen, president of the American Civil Liberties Union, testified in favor of the Religious Freedom Restoration Act (yep, you read that correctly), saying RFRA would protect “such familiar practices as . . . permitting religiously sponsored hospitals to decline to provide abortion or contraception services.” The ACLU didn’t think conscience was either “so-called” or “controversial” in 1992.

In 1996, a bipartisan Congress again defended conscience rights, enacting the Coats-Snowe Amendment to the Public Health Services Act with President Bill Clinton’s signature. This law prohibits the federal government and any state or local government receiving federal funds (i.e., all of them) from discriminating against physicians or health-training programs or their participants on the basis that they don’t provide or undergo abortion training or perform or refer for abortions.

Forty-seven states have enacted laws protecting medical professionals from being discriminated against because of their objection to participating in abortion, most of those becoming law in the years immediately following Roe.

But everything above is just icing on the cake. Politico could have confirmed its narrative was false just by reading Roe. Addressing the concern that this new right to an abortion might result in attempts to force medical professionals to perform them, the Supreme Court explained this wouldn’t happen because the American Medical Association’s House of Delegates had already broadly defended the exercise of religious and moral conscience in the abortion context, quoting it in Roe:

Be it … resolved that no physician or other professional personnel shall be compelled to perform any act which violates his good medical judgment. Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles. In these circumstances good medical practice requires only that the physician or other professional personnel withdraw from the case so long as the withdrawal is consistent with good medical practice.

In the companion case Doe v. Bolton, the Supreme Court called a state law allowing hospitals not to admit patients for abortions and prohibiting them from requiring medical professionals to assist in them an “appropriate protection to the individual and to the denominational hospital.”

There is simply no historical ground upon which Politico can claim that protecting the right of medical professionals not to participate in abortion was “controversial” at the time of Roe or in the decades thereafter. It has only become “controversial” to defend the right of people to think differently and to live according to their own moral compass when the political left recently abandoned this classically liberal principle in favor of government compulsion.

The whole article reads like a horror movie in search of a villain. Its writers and interviewees know that HHS committing resources to safeguard the conscience of medical professionals and institutions that deliver health services to Americans is an evil plot. They just don’t know how. So the authors introduce the reader to none of these laws (available on the HHS Office of Civil Rights website with handy links), vaguely assert that all of this is really about LGBT issues (it’s not), and try to make boogey-men of those in this new office.

What Politico doesn’t do is inform readers that those advocating for government to compel medical professionals to perform abortions are actually the ones advocating for a departure from our historical common ground of respecting one another’s conscience. That, apparently, would complicate the narrative.

Casey Mattox is senior counsel with Alliance Defending Freedom. You can follow him on Twitter at @CaseyMattox_.

 

Trump gives relief to religious Obamacare objectors

Deseret News

Hannah C. Smith

Last Friday, the Trump administration revised rules implementing the Affordable Care Act in a way that expands protections for religious and moral objectors to the contraception mandate — achieving the common-sense balance that religious organizations have sought for the past six years. These revisions allow religious nonprofits — like the Little Sisters of the Poor — to avoid millions of dollars in fines because their employee health insurance plans exclude coverage for contraception, a practice contrary to Catholic doctrine on respecting human life.

Judging by some media hyperbole, however, you would think that the federal government had just abolished the ACA’s birth control mandate altogether. Headlines that claim the federal government’s move “reverses” or “scraps” or “ends” the mandate are all wrong.. . .The vast majority of women in America will continue to receive free birth control, and religious objectors will not be forced into providing services that violate their conscience. . . [Full text]

 

Donald Trump’s new guidelines for protecting religious faith restore justice

Washington Times

Editorial

Not so long ago, President Trump’s new guidelines for the Department of Health and Human Services for protecting freedom of religious faith would have been superfluous and unnecessary. A casual observer might have read them in puzzlement, as if the government had reaffirmed its opposition to robbery or murder.

But all that was before the Obama administration sought to bring those of religious faith to heel, ordering employers to pay for contraception devices and abortion-inducing drugs, even if it violated the conscience of employers. Under pressure, the Obama administration grudgingly exempted churches from its mandate, but employers affiliated with religious groups still were required to pay through third-party administrators.

The new guidelines, drawn up by the U.S. Justice Department, change that. The order does not prohibit employers paying such benefits, and many employers will continue to do so. Nor will anyone be deprived by the government of their condoms, diaphragms and other birth-control devices. But “going forward,” as the cliche goes, an employer will not be required by the U.S. Government to violate his conscience for the convenience of those hostile to religious faith. . .[Full text]

Christian Medical Association and Freedom2Care Applaud Administration’s Actions to Protect Conscience in Healthcare

News Release

Christian Medical Association

WASHINGTON, Oct. 6, 2017 — Today the nation’s largest association of Christian health professionals, the 18,000-member Christian Medical Association (CMA, Christian Medical Association www.cmda.org) applauded the administration’s actions to restore conscience freedoms in healthcare. The administration took action concerning the Obamacare contraceptives mandate, insurance premiums used to pay for abortions, and regarding government respect for religious freedom.

“We are thankful to see these vital conscience freedoms restored in healthcare,” noted CMA Senior Vice President Gene Rudd, MD, and Ob-Gyn physician. “For millennia, medical ethics have provided for conscientious opposition to abortion by physicians who took up the practice of medicine as a healing art never to be used for the destruction of human life. And until recently, our government reinforced those ethical principles with conscience protections. We are heartened to see our government heading back in the direction of these vital freedoms that protect patients, medicine and freedom in our country.”

Jonathan Imbody, director of Freedom2Care (www.Freedom2Care.org), which is affiliated with CMA said, “As Americans who have inherited a nation founded upon freedom of faith, conscience and speech, we can agree that the government must never force individuals to violate their deepest held beliefs on vital and extremely controversial issues such as abortion. When our leaders forget these principles, and take to forcing nuns to participate in matters they consider wholly immoral, the American people realize that our fundamental freedoms are in jeopardy. If the government can take away the rights of one group, then no one is safe from government coercion.

“These actions today by the administration are an important step back in the direction of freedom and respect for one another, and we look forward to more actions in the future, including restoration of the conscience rule for health professionals that President Obama gutted.”

Contact: Margie Shealy, Christian Medical Association, 423-341-4254

Trump Administration Rolls Back ACA Contraceptive Coverage Rule

Several organizations plan to sue over the change

Medpage Today

Joyce Frieden

WASHINGTON — Medical groups expressed disappointment in rules issued Friday by the Trump administration that rollback contraceptive coverage requirements put in place by the Obama administration.

The new rules were issued as “interim final” regulations, meaning that they will be implemented immediately. The rules allow employers to refuse to cover contraceptives for any moral or religious reason. It also no longer requires employers to allow their insurers or third-party administrators to provide separate coverage, instead calling that arrangement an “optional” accommodation.

Under the Affordable Care Act, employers were required to cover all forms of contraception with no co-pay. Certain religiously affiliated employers, such as churches or religious affiliated hospitals or universities, were exempted from this rule; however, once they signed paperwork stating that they did not want to provide coverage, the employer’s insurer or third-party administrator then had to provide that same coverage, with no co-pay, to employees who needed it. . .[Full text]

 

Trump Administration Issues Rules Protecting the Conscience Rights of All Americans

News Release

For immediate release

United States Department of Health and Human Services

The Departments of Health and Human Services, Treasury, and Labor are announcing two companion interim final rules that provide conscience protections to Americans who have a religious or moral objection to paying for health insurance that covers contraceptive/abortifacient services. Obamacare-compliant health insurance plans are required to cover “preventive services,” a term defined through regulation. Under the existing regulatory requirements created by the previous administration, employers, unless they qualify for an exemption, must offer health insurance that covers all FDA-approved contraception, which includes medications and devices that may act as abortifacients as well sterilization procedures.

Under the first of two companion rules released today, entities that have sincerely held religious beliefs against providing such services would no longer be required to do so. The second rule applies the same protections to organizations and small businesses that have objections on the basis of moral conviction which is not based in any particular religious belief.

In May, President Trump issued an “Executive Order Promoting Free Speech and Religious Liberty” in which the President directed the Secretaries of Health and Human Services, Labor and the Treasury to consider amending existing regulations relative to Obamacare’s preventive-care mandate in order to address conscience-based objections.

Key Facts about today’s interim final rules:

  • The regulations exempt entities only from providing an otherwise mandated item to which they object on the basis of their religious beliefs or moral conviction.
  • The regulation leaves in place preventive services coverage guidelines where no religious or moral objection exists – meaning that out of millions of employers in the U.S., these exemptions may impact only about 200 entities, the number that that filed lawsuits based on religious or moral objections.
    • These rules will not affect over 99.9% of the 165 million women in the United States.
  • Current law itself already exempts over 25 million people from the preventive-care mandate because they are insured through an entity that has a health insurance plan that existed prior to the Obamacare statute.
  • The regulations leave in place government programs that provide free or subsidized contraceptive coverage to low income women, such as through community health centers.
  • These regulations do not ban any drugs or devices.
  • The mandate as defined by the previous administration suffered defeats in court after court, including the Supreme Court, which ruled that the government cannot punish business owners for their faith.

The IFR can be found here:

https://www.federalregister.gov/d/2017-21852

https://www.federalregister.gov/d/2017-21851

To find a fact sheet on the IFRs, visit:  Religious and Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act

Contact: HHS Press Office
202-690-6343
media@hhs.gov