An end of term gift from the Bush Administration

December 9, 2008

When you need a new law to enforce and give teeth to already existing laws, you know you've got a problem.

That's why you should be grateful to the out-going Bush administration -- especially if you are a healthcare professional -- that your right to follow the dictate of conscience in the workplace will be newly ensured (even though that right has been guaranteed by law for years now -- at least on paper).

The Department of Health and Human Services (HHS) is expected to enact -- perhaps as soon as this week -- a regulation that will enforce already existing legal protections of healthcare providers' conscience rights. I wrote about the draft regulation last August when it was first released for public comment. [1]

The new proposed regulation -- notwithstanding cries of foul play and overreach by the liberal MSM and abortion rights advocacy groups -- simply ensures compliance with existing federal statutes. [2] These statutes, as explained in the draft regulation, prohibit recipients of certain federal funds from coercing individuals into participating in actions they find religiously or morally objectionable. These same provisions also prohibit discrimination on the basis of one's objection to, or participation in, specific procedures, including abortion or sterilization, or one's participation in, or refusal to participate in, abortion or sterilization procedures. In so doing, the new regulation protects the conscience rights of millions of healthcare professionals -- a move that is long over due.

Despite the existence of federal statutes (at least one on the books for over three decades) to protect healthcare provider conscience rights, their application has too often been thwarted by minimal public awareness, and by the ever growing and more open hostility towards providers who would exercise their conscience rights. As a lengthy introductory section of the draft rule entitled "The Problem" explains, in our day the healthcare establishment has succumbed in large part to "an increasingly pervasive attitude...that healthcare personnel and institutions should be required to violate their consciences by providing or assisting in the provision of controversial medicine or procedures, or else face being blacklisted, excluded from practice, terminated from their jobs, or otherwise subjected to discrimination." [3]

The proposed rule would ensure that organizations are in compliance with current federal law by doing the following:

• Clarifying that non-discrimination protections apply to institutional health care providers as well as to individual employees working for recipients of certain funds from HHS;
• Requiring recipients of certain HHS funds to certify their compliance with laws protecting conscience rights;
• Designating the HHS Office for Civil Rights as the entity to receive complaints of discrimination addressed by the existing statutes and the proposed regulation; and
• Charging HHS officials to work with any state or local government or entity that may be in violation of existing statutes and the proposed regulation to encourage voluntary steps to bring that government or entity into compliance with the law. If, despite the Department's efforts, compliance is not achieved, HHS officials will consider all legal options, including termination of funding and the return of funds paid out in violation of the nondiscrimination provisions.

The rule has already traversed the proper federal rule-making steps of providing notice and allowing for public comment, and the Bush Administration is expected to release the final rule before Christmas. Once the final rule is issued it takes effect, and has the force of law.

Formally overturning the rule would require the same process that it took to enact it, namely: publishing a proposed rule that would overturn the conscience rights protection rule, a period of public comment, and publication of the final rule. Such a process can be accomplished in a matter of months.

It may also be possible for the incoming Obama administration to exploit executive procedures in order to prohibit enforcement of the new rule or otherwise render the rule useless. Undercutting the new rule would certainly be a bold move by the Obama administration, and would invite skepticism of the new President's commitment to the very virtue of justice itself. One would hope he shares the conviction that, in our American experiment in ordered liberty, reverence for the domain of conscience has consistently been upheld as a signal dimension of justice.

Now, many have decried the proposed HHS regulation suggesting that women will face the prospect of receiving substandard health care as the result of their health care provider's exercise his or her conscience rights. That argument has no legs to stand on when examined from the perspective of the rights and liberties of both patient and health care worker, and the current state of the "market" of our health care system.

A patient's "right" of access to various procedures, services or prescriptions - if temporarily limited in some instance by a health care worker's exercise of conscience - is not entirely undermined. Rather, the patient has recourse to the vast system of clinics, hospitals and pharmacies that will service them, including the multitude of women's and family planning clinics available for precisely the services that may be considered objectionable by many in the health care system.

On the other hand, we should also recall the dangers of treating the healthcare system like a fast-food enterprise: it is certainly not the case that patrons of the former should expect the same kind of service-on-demand as patrons of the latter. Medical services have always been and always must be provided to individuals through the necessary medium of prudential medical judgment. The conscience of the healthcare provider is of a piece with that ability to make sound medical judgments.

The prospect that some individuals will encounter a potential temporary limitation on their access to abortion, sterilization, or contraception is an altogether acceptable and reasonable consequence that our society should quite readily be capable of accommodating. In contrast, the outright denial of free exercise of conscience in the healthcare field undermines the very practice of medicine as we know it. In the scenario where conscience rights are not protected, health care workers have no recourse; violation of their conscience is not a temporary limitation, but a shocking desecration of their most deeply held beliefs and moral convictions, and of the very virtue of justice on which our democracy stands.

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Rev. Thomas V. Berg, L.C. is Executive Director of the Westchester Institute for Ethics and the Human Person.


¹An early draft of the proposed rule leaked to the press without approval of HHS Director Michael Leavitt, in its broad definition of abortion, appeared to link certain contraceptive devices and drugs to abortion due to their abortifacient effect, thus appearing to enshrine federal protections for healthcare providers who conscientiously objected to prescribe or assist patients in obtaining contraceptives. Leavitt clarified in August that this was not his intention. So, while the final draft will likely avoid wording that directly associates contraceptives with abortion, I remain hopeful that it will continue to define abortion (as in the earlier draft) as “the termination of a life of a human being either before or after implantation” (emphasis my own).

²The Church Amendments (42 U.S.C. § 300a-7), Public Health Service (PHS) Act §245 (42 U.S.C. § 238n), and the Weldon Amendment (Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 508(d), 121 Stat. 1844, 2209).

³The draft enumerated, among other instances, a New York Times editorial suggesting that doctors unwilling to violate their consciences (or what the Times editors euphemistically refer to as engaging in a practice that “conflicts” with the physician’s “values”) should give up the practice of medicine; the recent passage of state laws in New York and California which would require entities such as Catholic Charities to offer employee prescription drug benefits to cover contraception; and a Connecticut law enacted in May 2007 requiring all hospitals -- including Catholic ones -- to distribute so-called ‘emergency contraception’ (Plan B) to rape victims. We could also note the American College of Obstetricians and Gynecologists adoption of an ethics opinion earlier this year that flagrantly disregarded these conscience protection laws.

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Fr. Thomas Berg is Executive Director of the Westchester Institute for Ethics and the Human Person.