HHS Refusal Clause Threatens Patient Conscience
The proposed regulation released by the Department of Health and Human Services seems not to be at all about protecting religious freedom. Rather, it uses the guise of religious freedom to create unreasonable barriers for women and men to access sexual and reproductive health care. Women and men should be able to access safe and legal sexual and reproductive health services. We need to campaign for a standard of care that gives everybody, without exception, access to the services and information they need.
Under the proposed rule, individuals cannot be required to “perform or assist in the performance of any part of a health services program or research activity funded by [HHS].” This goes well beyond the concerns some have about the provision of abortion, sterilization and contraception. The rule even allows practitioners who object to medical procedures to refuse to refer patients elsewhere. The proposed rule is so broadly written that it will not only excuse health workers who refuse to dispense birth control pills, emergency contraception and other forms of contraception, but may also be interpreted so as to affect referrals and counseling on issues seemingly unrelated to abortion—such as the provision of health-care services to gays and lesbians or counseling to an HIV-positive patient.
The question remains: Are these new regulations needed at all? Conscience clauses have gone through many permutations since they first appeared after the Roe v Wade decision; and there are currently three federal conscience clauses on the books. While these clauses claim to protect health-care workers who refuse to participate in certain health-care practices, they result in women’s access to vital health-care services being threatened. The ability to deny providing even counseling or referrals becomes an infringement on the conscience of the patient by denying her the means to obtain an abortion in a safe, convenient and timely manner. The expansion of these clauses goes beyond protecting the religious and moral beliefs of health-care providers; they act as a means to refuse treatments and medications to all.
The concept of conscience has been repeatedly manipulated, especially in the context of reproductive health and rights. While some have pointed to Catholic teaching and the support of the US Conference of Catholic Bishops and the Catholic Health Association (the trade association of the Catholic health industry), to support the imposition of ever-more restrictive refusal clauses, such as those in the new HHS proposal, they do not, in fact, reflect the Catholic position. Catholic teachings on conscience are much more nuanced than is usually presented in legal and policy debates.
Catholic teaching requires due deference to the conscience of others in making decisions. Health-care providers must not dismiss the conscience of the person seeking care. If conscience truly is one’s “most secret core and his sanctuary [where] he is alone with God, whose voice echoes in his depths,” as the Catholic Catechism states, how can anyone, or any institution for that matter, justify coercing someone into acting contrary to her or his conscience?
The goal of any reasonable conscience clause must be to strike the right balance between the right of health-care professionals to provide care that is in line with their moral and religious beliefs and the right of patients to have access to the medical care they need. Within the field of medical ethics, the accepted resolution to a conflict of values is to allow the individual to act on his or her own conscience and for the institution (the hospital, clinic or pharmacy) to serve as the facilitator of all consciences. Additionally, the individual, in this case a doctor, pharmacist or nurse, must not dismiss the conscience of the person seeking the health service. One does not need to deny a patient emergency contraception or abortion in order to remain a good Catholic.
The result of the recent expansion in refusal clauses is that women and men seeking sexual and reproductive health-care services are routinely denied access to or have great difficulty in receiving care. When the government, through regulation and support of those who are willfully denying necessary medical treatment to individuals, is party to such an expansion, it is negating the right to conscience of the woman, or man, seeking care.
We strongly support the reasonable accommodation of employees’ religious beliefs in the workplace, but a woman, regardless of her religion, age, income, race or geographic location must have access to the health-care services she needs, including the full range of contraceptive options and information.
Behind this proposed regulation is a claim that it will protect individuals who feel they are being denied rights. However, in doing so, it goes too far and tramples the rights of those who will be consequently denied medically appropriate treatment. Current federal conscience clauses already provide more than enough protection for those medical professionals who refuse to provide services to which they object. There is no need to introduce any more such clauses. In fact, we would do well to revisit the ones that are already on the books to ensure that they do enough to recognize the rights of patients needing medical care.
This article originally appeared on RH Reality Check on October 10, 2008.