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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
Legal Commentary

Christian Medical Association

Commentary re: Regulation 45 CFR Part 88 (2008) [Rescinded]
U.S. Department of Health and Human Services

  • Note: This commentary refers to a regulation issued in December, 2008 by the Bush Administration. It was eviscerated by the Obama Administration and re-issued in February, 2011. [See current regulation]

15 July, 2008

The Honorable Michael O. Leavitt
Secretary of Health & Human Services,
U.S. Department of Health & Human Services
Hubert Humphrey Building
200 Independence Ave., S.W.
Washington, DC 20201

Dear Secretary Leavitt,

The New York Times has indicated that you intend to soon publish regulations in accord with federal laws protecting patients and healthcare professionals in decisions relating to controversial procedures and prescriptions. These regulations reportedly will help "to ensure that federal money does not 'support morally coercive or discriminatory practices or policies in violation of federal law.'" On behalf of our 13,000 members, we applaud your leadership in taking this long overdue action.

It is entirely appropriate, given the past 35 years of laws passed by Congress, that these principles finally be translated into practical healthcare regulations. From the 1973 Church Amendment to the more recent Hyde-Weldon Amendment, Congress has recognized the importance of protecting patients and their healthcare professionals from political pressures on these vital issues.

Americans on all sides of controversial issues such as abortion, reproductive technologies and assisted suicide can appreciate the need to protect everyone's First Amendment rights of free speech and religious exercise. That means that healthcare professionals must be free to follow their individual conscientious convictions on these life-and-death matters.

An informal survey of Christian Medical Association members found that over 41 percent of respondents had been "pressured to compromise Biblical or ethical convictions." Anecdotal accounts suggest that few persecuted healthcare professionals actually know their conscience rights and that they typically simply submit to pressure by resigning. Students who experience discrimination and pressure to violate conscience simply give in and attempt to find a more tolerant institution or a less controversial field of medicine than obstetrics and gynecology. Unless pro-life professionals are equipped to know and apply their conscience rights, they actually stand at risk of being weeded out from the profession altogether.

Patients are protected when physicians follow objective ethical codes, such as those expressed in the Hippocratic Oath and the Judeo-Christian Scriptures. These life-honoring principles have protected patients for millennia. We recognize that some individuals choose to refuse to follow these principles, and under current law, that is their choice.

The regulations reportedly under consideration at Health and Human Services apparently would simply protect the right for all healthcare professionals to make professional judgements based on moral convictions and ethical standards. Protecting this right also protects patients who choose their physicians based on life-affirming values.

We applaud your leadership in this area and look forward to commenting on the proposed regulations.

Sincerely,

David Stevens, MD
Chief Executive Officer


Related Links:

MEMORANDUM (CMA)

DATE: September 19, 2008

FROM: Jonathan Imbody
Vice President for Government Relations
Christian Medical Association - Washington Bureau
Ashburn, Va.

TO: Secretary Mike Leavitt

RE: Provider Conscience Regulation - methods of communication

I write in strong support of the regulation and in specific reference to the request for comment on

"…what constitutes the most effective methods of educating recipients of Department funds, their employees, and participants of the protections against discrimination found in the Church Amendments, PHS Act § 245, and the Weldon Amendment. What is the best method for communicating to the public the protections afforded by these statutes, and any regulation implementing them?"

Methods of communicating legal protections and requirements

1. Physically posting notices in buildings is probably a necessary but a less than effective communication method due to (a) competition with many other similar-looking notices and (b) the fact that many individuals expect federal notices to be arcane and will not likely read them.

a. Instead of replicating the typical format that telegraphs "boring technical information" to the reader, notices should enhance their readability with the use of pictures and engaging headlines such as those found in advertisements.

b. Clear criteria should be communicated along with the notices specifying to the institutions how and where they are to be posted, including the requirement that they be prominent, not obscured, and checked regularly and replaced as needed.

2. Notices on websites and in handbooks are a bit more likely to be read, although arguably busy individuals will not plod through handbooks and similar information vehicles.

a. The HHS web site could feature on its home page a graphic with a link to a distinct HHS web section that provides summary and in-depth information on conscience rights.

b. To increase readership, web notices should imitate the format found in web advertisements.

c. Information in handbooks should be set apart graphically to increase visibility.

3. Including notices in applications for training, residency, and educational programs is a great approach and crucial, since individuals in training are typically in the information gathering mode, and more importantly, because the beginning of medical careers is where education concerning conscience protections must begin.

a. Besides requiring written notices in applications, official handbooks and student manuals should also contain the notices.

b. Consider also requiring that institutions verbally relay a summary statement prepared by HHS during orientation sessions. Alternately, separate notices could be required to be distributed during orientation sessions.

c. Educational institutions can also be encouraged to include this information inappropriate classes and other venues.

4. A series of 30-second radio public service announcements would help educate the public without incurring advertising costs.

5. Medical specialty groups could be contacted and urged to alert their constituents withinformation prepared by HHS, including links to the HHS web site.

6. All of these information strategies can be enhanced by:

a. Keeping the message simple. Headlines, slogans and introductory sentences should convey the basic principles, while more detailed or legal information can be included following these simple points. Example: "Healthcare Professionals Have First Amendment Rights, Too."

b. Employing the unexpected. A headline such as, "How to Lose Your Federal Funding," for example, is sure to gain attention.

c. Providing concrete examples, similar to the hypothetical examples used to explain IRS guidelines, that illustrate legal protections and boundaries.

d. Using stories that illustrate conscience protection principles. Ample stories are available from those submitted on the Secretary's blog and elsewhere.

7. Hiring a consulting firm with expertise in public relations and communications would be worthwhile, similar to the approach used by HHS in expanding public awareness regarding trafficking in persons.

Thank you very much for your consideration of these suggestions, and for your efforts to implement civil rights protections for healthcare professionals.


Related Links:

MEMORANDUM (CMA)

DATE: September 18, 2008

FROM: Jonathan Imbody
Vice President for Government Relations
Christian Medical Association - Washington Bureau
Ashburn, Va.

TO: Secretary Mike Leavitt

RE: Provider Conscience Regulation

I write in strong support of the regulation and in specific reference to the request for "information with regard to general knowledge or lack thereof of the protections established by these nondiscrimination provisions, including any facts, surveys, audits, reports, or any other evidence of knowledge or lack of knowledge on these matters in the general public…"

To answer this question, the polling company, inc. on September 11-14, 2008 conducted a nationwide survey, commissioned by the Christian Medical Association. Full results of this survey are included in this memorandum, below.

This scientific, objective poll found that only 38 percent of Americans realize that physicians may not legally be coerced into violating standards of medical ethics and their own conscientiously held moral convictions by requiring them to perform abortions or refer patients for abortions.

This widespread ignorance of civil rights protections helps explain why over 40 percent of our members report being pressured to violate their moral and ethical convictions in healthcare. It also underscores the urgent need for the HHS regulation and to educate the public and medical community concerning civil rights in healthcare.

Protecting the civil rights of healthcare professionals allows their adherence to time-tested ethical standards that protect patients, including the Hippocratic Oath. It's ironic and alarming that many today would actually disregard civil rights and forbid physicians from following the Hippocratic Oath and other ethical standards that respect early human life.

If physicians lose the freedom to follow conscience and ethical standards, patients lose the protections of those standards. Patients also will ultimately lose access to those physicians, who will be forced to choose other careers rather than violate ethical standards.

Thank you very much for your consideration of these views and the poll data, which follows.


the polling company TM, inc./WomanTrend for Christian Medical Association

To: Jonathan Imbody, Vice President for Government Relations
From: Kellyanne Conway, President and CEO
Date: September 16, 2008

Re: Analysis of Findings: Nationwide Survey of American Adults
Introduction and Methodology
the polling company TM, inc. is pleased to present to Christian Medical Association (CMA) the results of a recent nationwide telephone survey of 1,000 adults (aged 18+).

The survey was fielded September 11-14, 2008 at a Computer Assisted Telephone Interviewing (CATI) phone facility using live callers. The sample was drawn utilizing a Random Digit Dial (RDD), where phone numbers were generated by a computer to ensure that every household in the nation with a landline telephone had an equal chance to be surveyed.

Sampling controls were used to ensure that a proportional and representative number of adults were interviewed from such demographic groups as age, gender, race and ethnicity, and geographic region1 according to the latest figures available from the United States Census.

One close-ended question that probed Americans' knowledge about federal law and the obligations of doctors when patients request abortions was added to a national omnibus survey.

The addition of this question was prompted by a request from the U.S. Department of Health and Human Services for information regarding the public's knowledge (or lack thereof) about this topic.

The final question wording was approved by an authorized representative of CMA prior to fielding.

The margin of error is calculated at +/- 3.1%at the 95% confidence level, meaning that in 19 out of 20 cases, the results obtained would differ by no more than three point one percentage points in either direction if other groups of 1,000 adults were surveyed using the same random sampling plan. Margins of error for subgroups are higher.

Most Americans Don't Know the Law Regarding Doctors and Abortion.
"I am now going to ask you a question about healthcare and the law.

"If a patient in the United States wants a doctor to perform an abortion or to refer her to another doctor who will perform an abortion, which of the following BEST describes what the doctor is required to do by federal law?"

[Read entire list before recording one answer]

4% "The doctor must perform the abortion."
38% "The doctor does not have to perform the abortion, but must refer the patient to another doctor who will."
38% "The doctor does not have to perform the abortion, nor does he or she have to refer the patient to another doctor who will."
5% "It depends" (volunteered).
11% Don't know (volunteered).
4% Refused (volunteered).

When read three possible descriptions regarding the legal obligations of a doctor when a patient requests an abortion, the clear majority of Americans surveyed revealed they did not have a firm grasp on the law.

As the results box demonstrates, just 38%of those surveyed selected the description that is actually in line with current federal law: that a doctor has the right to refuse to provide both the procedure and the referral.

By comparison, 42%of these adults believed the doctor did have some obligation under federal law: either to perform the abortion (a paltry 4%) or at least refer the patient to someone who would(38%). Another 11% admitted they weren't sure and 5% allowed for situational variances, saying"it depends."

An examination of the crosstabular data revealed the following:

  • The lack of knowledge of federal law on this topic was widespread as no more than 47%of any demographic subgroup selected the correct description of the doctor's obligations. Those more likely than most to know the doctors was not required to perform an abortion or provide a referral included 45-64 year olds, residents of the North Central region, and those earning between $25,000 and $50,000 per year.
    • Young adults (those aged 18-24) stood out as especially likely to believe the doctor was legally required to perform an abortion (10% vs. 4%overall).
  • Groups more likely than most to believe a physician in this situation was legally bound togive a referral to an abortion provider included 18-24 year olds, residents of the NorthEast, and Hispanics.
  • Americans more apt than average to admit they simply did not know included 25- 34year olds, seniors (65+), and those earning less than $25,000 per year.
  • There was no appreciable difference between the answers of men and women, nor wasthere a statistically significant pattern based on education.
In Conclusion...
These data make clear that most Americans aren't sure what the rights and obligations of doctors are regarding abortion. While very few believe doctors are compelled by federal law to perform the procedure, a substantial number think they are required to provide a referral. To fully comprehend their rights and options as patients, it is important for Americans to understand the laws governing the practice of medicine by doctors.

Overall, it seems apparent that additional information is required to ensure both doctors and patients know both their rights and their obligations.


TOPLINE DATA

Nationwide Telephone Survey of 1,000 Adults

Field Dates: September 11-14,2008

Margin of Error: +/- 4.4%

1. I am now going to ask you a question about healthcare and the law. If a patient in the United States wants a doctor to perform an abortion or to refer her to another doctor who will perform an abortion, which of the following BEST describes what the doctor is required to do by federal law?

[Read entire list before recording one answer]

4% "The doctor must perform the abortion."
38% "The doctor does not have to perform the abortion, but must refer the patient to another doctor who will."
38% "The doctor does not have to perform the abortion, nor does he or she have to refer the patient to another doctor who will."
5% "It depends" (volunteered).
11% Don't know (volunteered).
4% Refused (volunteered).

DEMOGRAPHICS
2. What is your age?
13% 18-24
17% 25-34
19% 35-44
19% 45-54
14% 55-64
16% 65+
2% REFUSED (VOLUNTEERED)

3. Are you Spanish, Hispanic, or Latino?
13% YES
86% NO
1% REFUSED (VOLUNTEERED)

4. Which of the following describe your race? You can select as many as apply.
75% WHITE/CAUCASIAN
11% BLACK/AFRICAN-AMERICAN
2% ASIAN/ASIAN-AMERICAN
12% SOME OTHER RACE
2% REFUSED (VOLUNTEERED)

5. What is your household's total income before taxes?
14% UNDER $25,000
9% $25,000- $34,999
17% $35,000- $49,999
17% $50,000- $74,999
26% $75,000 OR MORE
17% DON'T KNOW/REFUSED (VOLUNTEERED)

6. Are there any children under the age of 18 living in your household?
40% YES
59% NO
1% REFUSED (VOLUNTEERED)

7. What was the last grade in school you completed?
7% LESS THAN HIGH SCHOOL
32% HIGH SCHOOL GRADUATE
28% SOME COLLEGE/ ASSOCIATES DEGREE
19% COLLEGE GRADUATE
13% POST GRADUATE
1% REFUSED (VOLUNTEERED)

7. Gender
48% MALE
52% FEMALE

8. Region1
19% NORTHEAST
22% NORTH CENTRAL
37% SOUTH
23% WEST

Notes

1. Northeast includes CT, ME, MA, NH, RI, VT, NJ, NY, PA; North Central includes IL, IN, MI, OH, WI, IA, KS, MN, MO, NE, ND, SD; South includes DC, DE, FL, GA, MD, NC, SC, VA, WV, AL, KY, MS, TN, AR, LA,OK, TX; West includes AZ, CO, ID, MT, NV, NM, UT,WY, AK, CA, HI, OR,WA.

 

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