Among President Obama’s first orders of business was to overturn regulations designed to protect health care providers who decline to participate in medical procedures that violate their religious or moral beliefs, like abortion. Two years later, the administration has issued its directive. Chalk it up in the good news and bad news category.
The thread of good news is that the administration claims it recognizes the right of health care providers not to participate in abortions. The bad news is that its new directive guts the regulations protecting that right.
The regulation came about after medical associations announced guidelines to pressure doctors to engage in abortions. Existing laws protected health care providers, but they were being ignored. Clearly, the statutes needed to be explained and enforced. Concerned Women for America (CWA) worked with groups like Christian Medical Association (CMA) and met with key officials to craft provisions.
CWA drove the point home that if health care providers are forced to engage in immoral acts, it will compel moral people to leave the profession. Pro-life patients would have no access to providers who reflect their views and fewer physicians overall.
A survey of faith-based physicians found that over 90 percent would leave the profession if coerced to violate their ethical beliefs. Many of these physicians provide care for disadvantaged patients and in rural areas.
The much-needed conscience regulations were issued in 2008. In March 2009, the Obama administration announced it was suspending the regulations and planning to rescind them. CWA encouraged people to send comments in favor of the conscience regulations to the Department of Health and Human Services (HHS) as it weighed what to do.
Over 300,000 responses were filed. Nearly 187,000 were in favor — two-thirds of all comments filed. On Friday, February 18, 2011, HHS issued a complicated and controversial decision.
In short, HHS eliminated key definitions that helped enforce existing laws and a requirement that entities receiving federal funding must certify that they are complying with the conscience laws.
However, HHS plans an education campaign to increase awareness of the conscience laws and, through the grant process, explain that compliance is required.
A review of the Obama administration change by the Heritage Foundation finds:
HHS’s regional Offices of Civil Rights will receive and investigate complaints, working with the relevant funding agencies whose grants and contracts with health care providers trigger the law’s coverage. Violation of conscience rights, it says, can result in loss of federal funding by the violator and even a demand to return granted or contracted funds. HHS will require notices of the conscience laws in its grant and contract paperwork with funded entities to build awareness of these laws, about which there has been little notice to health care providers. However, the 2008 regulations’ requirement that grant and contract recipients certify their compliance and intent to comply with the law is gone. Too much paperwork, HHS says — a rarely heard complaint from its vicinity in recent years. Next, the regulations’ potential application outside of abortion and sterilization, which are specifically mentioned in some, but not all, of the underlying conscience laws, is squelched. As controversial as abortion and sterilization can be, they are not the only issues that arise in medical practice, especially in the new biotech century. The rescission goes out of its way to make clear HHS’s view that these laws “were never intended to allow providers to refuse to provide medical care to an individual because the individual engaged in behavior the health care provider found objectionable.” This interpretation would appear to apply to, for example, a situation in which an unmarried couple seeks a service that a provider might willingly offer to a married couple. HHS underscores that the conscience regulations do not apply to “contraception,” a potential minefield given the growing array of medical devices and medicines that operate both before and after conception. Biology may not honor the sharp distinction HHS envisions here. Finally, the new rule indicates that HHS will move forward on a case-by-case basis to enforce the law. This could have value as opposed to attempting to define all of the potential conflicts that can arise in modern medical practice, but it might also offer a means for this $1 trillion per year federal department to gestate cases and investigations for years at a time. An online list of complaints, their investigatory status, and contemplated review and resolution date might assist the public in concluding that HHS means business on conscience protection. That would be cold comfort to a nurse told she must participate in an abortion or face rejection of her graduate school application if she refuses to take part in an act she abhors.
Dr. J. Scott Ries, a family physician and CMA’s vice president, noted, “The Obama administration’s regulatory action today diminishes the civil rights that protect conscientious physicians and other healthcare professionals against discrimination. Any weakening of protections against discrimination against life-affirming healthcare professionals ultimately threatens to severely worsen patient access to health care.”
Former U.S. Assistant Secretary of Health Dr. Joxel Garcia, who developed the 2008 conscience regulations, commented, “Pushing conscientious physicians out of medicine is a significant step toward a healthcare system controlled by the state that moves away from the ethical roots of medicine. In the new governmental utilitarian model, the ‘common good’ defined by the state supersedes any moral, religious or ethical principle such as embodied in the Hippocratic Oath, which has protected patients for millennia.”
Several bills have been introduced in Congress that will shore up health care providers’ conscience rights, such as the Protect Life Act (H.R. 358), the No Taxpayer Funding for Abortion Act (H.R. 3), and the Abortion Non-Discrimination Act (H.R. 361).