HHS Protection of Conscience Regulation (2008-2011)
U.S. Department of Health and Human Services
Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law

The Progressive Case for Conscience Protection

Have progressives abandoned liberty of conscience?

Public Discourse: Ethics, Law and the Common Good
9 March, 2011
Reproduced with permission

Robert K. Vischer*

"Conscience" is not a code word for abortion restrictions, and the liberty of conscience is too important to let it become the exclusive property of conservatives. Conscience is not the only value that matters in our health care debates, but there is a disturbing trend among progressives of acting as though it does not matter at all.

How did the liberty of conscience become a "conservative" cause? The American Civil Liberties Union (ACLU), generally quick to take the individual's side in any contest against state power, was among the groups filing suit to block George W. Bush's conscience protection regulations from being implemented. Other progressive groups that trumpet their commitment to defending an individual's moral integrity against government incursions were curiously silent about President Obama's rollback last month of the Bush regulations. The vocal critics of the rollback were largely the same groups that can be expected to lambaste virtually anything emerging from the Obama White House.

We've come a long way from the times when ringing defenses of conscience were provided by progressive heroes such as Jefferson, Thoreau, and Gandhi. The former Democratic governor of Wisconsin justified his veto of a conscience bill for health care providers on the ground that "you're moving into very dangerous precedent where doctors make moral decisions on what medical care they provide."

At least in theory, progressives are more likely than conservatives to pledge allegiance to the Supreme Court's well-known "mystery of life" passage: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." (For a provocative argument on this, see Mark Rienzi's Public Discourse essay.) In the context of the cases in which the mystery passage has appeared-striking down laws that limit abortion and prohibit same-sex sodomy-the progressive commitment to individual autonomy is beyond reproach. But why has that commitment excluded the health care provider?

Before answering that question, though, a bit of background about the differences between the Obama and Bush conscience regulations is in order. At the end of the Bush presidency, the Department of Health and Human Services (HHS) issued regulations requiring more than a half-million federally funded healthcare entities to certify compliance with the conscience protections prescribed by federal statutes. HHS explained its concern "that the public and many health care providers are largely uninformed of the protections afforded to individuals and institutions under these provisions."

The Bush regulations were met with howls of protest. Eight states filed suit to block their implementation. Connecticut's Democratic attorney general called the new regulations an "appalling insult and abuse." President-elect Obama considered the regulations "troubling," and he rescinded them soon after he took office. His administration's replacement regulations were issued last month. The opening paragraph made clear that the underlying law remains the same under both sets of regulations:

Neither the [Bush] 2008 final rule, nor this Final Rule, alters the statutory protections for individuals and health care entities under the federal health care provider conscience protection statutes, including the Church Amendments, Section 245 of the Public Health Service Act, and the Weldon Amendment. These federal statutory health care provider conscience protections remain in effect.

Notwithstanding the shared legal framework, the Bush and Obama regulations differ in a few important aspects. First, rights usually come with a remedy. The relevant federal statutes lack a private right of action, meaning that workers who suffer discrimination in violation of the conscience provisions cannot bring suit to recover for their harm. The Bush regulations did not provide one either, but some observers were hopeful that, by requiring federally funded entities to certify their compliance with the statutes, the rights would have a little more "teeth" to them. The Bush regulations also permitted individuals to file complaints with the Health and Human Services Office for Civil Rights, and then that office could act on the complaints as it deemed appropriate. While omitting the compliance certification requirement, the Obama regulations preserve the complaint avenue, though the fear is that, when action is left solely to an agency's discretion, the corresponding rights will be left to jockey for attention with a laundry list of other regulatory priorities. Given that the Democratic base has hardly been clamoring for more aggressive enforcement in this area, one cannot help but be skeptical.

Second, the explanatory comments accompanying the Bush regulations suggested that the protection afforded by the statutes went beyond the right not to participate in abortion or sterilization. In introducing the replacement regulations, the Obama administration makes clear that it "supports clear and strong conscience protections for health care providers who are opposed to performing abortions." The implicit corollary to that, however, is that the right not to participate in other morally controversial procedures may be a little murkier in the administration's eyes. Indeed, the initial media coverage has furthered this narrative. The Washington Post's Rob Stein, for example, reports that the Obama regulations leave in place "only long-standing federal protections for workers who object to performing abortions or sterilizations," rather than the broader protections granted by the Bush regulations for "doctors, nurses, pharmacists, or other employees who refused to participate in care they felt violated their personal, moral or religious beliefs."

This aspect of the story stands in tension with a provision of the underlying statutes, 42 U.S.C. § 300a-7(d), which provides that:

No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by [the Department] if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.

This language suggests protection for a provider's conscience beyond abortion and sterilization. To the extent that the Obama administration portrays the Bush regulations as overreaching because they purported to cover more than abortion and sterilization, is it actually the Obama administration that needs to explain its apparent departure from the existing law?

Third, the Bush regulations defined some key terms, such as "assist in the performance," "health care entity," and "recipient," in order to clarify the legal obligations of funded entities. The Obama regulations rescind the definitions entirely, explaining that "individual investigations will provide the best means of answering questions about the application of the statutes in particular circumstances." Again, this change is not reassuring for those who doubt the Obama administration's commitment to conscience. Clearly stated definitions provide transparency and enhance agency accountability by setting the terms of the inquiry for all to see. The Obama regulations do not reject any particular Bush definition; they just rescind them en masse. By opting to punt instead of facing potential areas of disagreement head on, President Obama has given the impression that he prefers to avoid the messy but important conversation about the substantive content of the liberty of conscience.

More broadly, the Obama regulations avoid explaining the underlying statutes. They simply set forth the purpose (enforcing the conscience protection statutes) and the mechanism for bringing complaints to the agency. The patchwork of statutes that protect conscience are not exactly user-friendly, and implementing regulations, at their best, can serve as a valuable roadmap. Forsaking the opportunity to make the statutes more widely and easily understood raises doubts about the President's commitment to the corresponding obligations.

So to the extent that the new regulations reflect the Obama administration's political assessment, why would a Democratic president so confidently assume that he could narrow conscience protections without angering his base? In other words, how did we get to a place where debates about conscience break down largely along partisan lines? Three possible explanations come to mind.

First, there is a tendency among abortion rights supporters (and opponents) to view conscience rights among health care providers as just another front in the ongoing abortion wars. Any gain for conscience must be a setback for the pro-choice side, it is assumed. In reality, a robust right of conscience, properly understood, cuts across ideological lines. The Bush regulations, for example, reiterated the federal statute prohibiting a funded health service provider from discriminating against a physician or other personnel "because he performed, assisted in the performance, refused to perform, or refused to assist in the performance of any lawful health service or research activity" based on his religious beliefs or moral convictions. In other words, a Catholic hospital could not deny visiting privileges to a physician who performs abortions. Whether or not this is a good idea-I have my own concerns about the extent to which these individual rights of conscience can threaten institutional identity-the Bush regulations cannot be dismissed as a one-sided grant of professional immunity to pro-life providers.

Second, progressives have recognized that the existence of a legal right does not mean much absent ground-level empowerment to obtain the good or service to which the right is attached. Martin Luther King Jr., for example, grew disenchanted with rights-focused advocacy by the end of his ministry. He observed that the civil rights laws for which he had worked so tirelessly had brought virtually no improvement to the lives of poor blacks. Progressives have long taken these and similar lessons to heart, envisioning liberty not just in its "negative" dimension-i.e., protection against interference with an individual's pursuit of particular goods-but also in its "positive" dimension-i.e., a right to affirmative assistance in securing particular goods. This dynamic is readily apparent in the reproductive rights arena, where the focus has shifted from decriminalizing abortion and contraception to insisting that the individual must have unfettered access to abortion and contraception. Not only should the full range of pharmaceuticals be available at every pharmacy, but they must be provided, in the words of former Illinois governor Rod Blagojevich, with "no hassle, no delay, no lecture."

The fact that the state cannot forbid the provision of a particular good or service is taken to mean that every good or service must be provided by all licensed providers. In the process, the moral convictions of providers are rendered irrelevant. The individual consumer does not just coexist with the morally divergent views of the provider; the individual, backed up by state power, trumps the provider. I do not mean to suggest that access to morally controversial goods and services is never of legitimate public value; however, the enshrinement of universal access as a precondition for participating in the marketplace imposes significant costs on other important public values-the liberty of conscience most glaringly.

The third possible explanation of progressives' apparent abandonment of the liberty of conscience in the health care context relates to the underlying view of professional licenses. The easy retort to any call for a professional right of conscience is, "Look, you may have a right to conscience as a private citizen, but state-licensed providers are like public officials. The right to conscience doesn't apply." Along these lines, the New York Times editorialized that pharmacists who refuse to dispense contraceptives are engaged in "an intolerable abuse of power" and need to "find another line of work." The National Organization of Women went higher up the chain of being, labeling such pharmacists as "extremists . . . arrogantly playing the role of . . . God." The problem with this argument is that it fundamentally rewrites the history and purpose of professional licensing, which has traditionally been aimed at ensuring competence, not on co-opting providers into serving state interests at the expense of their own moral agency. Lawyers, for example, are free to decline representations that they find morally repugnant, and the bar's licensing inquiry focuses on competence and character, but not on the lawyer's willingness to take on whoever walks into his office. We want professionals to be morally engaged with the work they do. As the twentieth century made all too clear, we take on significant risks when we encourage (much less require) the professional's role to define the professional's conscience.

Invoking licenses to justify intrusions on conscience falls short for another reason. We are not talking about individuals trying to rewrite their job descriptions, as if the stalwart death penalty opponent still feels entitled to be hired as the state executioner. We are talking, by and large, about individuals who have performed their jobs for many years conscientiously and out of a real sense of service to the public, but who now face a dramatically shifting landscape. Imagine that you are a small-town pharmacist in Illinois. You've watched technology bring along a string of new drugs, and some of those drugs, such as the so-called "morning after" pill, may conflict with the values that led you to join the profession in the first place. If this pharmacist is now faced with a state-mandated choice between leaving his profession or facilitating what is, in his view, a grave moral harm, why shouldn't his hardship count as a liberty of conscience cause worth fighting for?

In the health care context, the government is not just another market actor. Government funding largely defines the market, so we need to tread very carefully in attaching voluminous strings to those funds. I am not altogether convinced that the Bush regulations were ideal. I hope that there might be more cost-effective ways of ensuring compliance besides a cumbersome and expensive certification regime, and in my view, the regulations did not leave enough space for distinct institutional identities. That said, no one can argue that the regulations fail to take the liberty of conscience seriously. President Obama still has some work to do to reassure me that he takes it similarly seriously. "Conscience" is not a code word for abortion restrictions, and the liberty of conscience is too important to let it become the exclusive property of conservatives. Conscience is not the only value that matters in our health care debates, but there is a disturbing trend among progressives of acting as though it does not matter at all.