Conscience-Clause Law and Religous Freedom in Health Care

Do health care practitioners have the right to refuse treatment based on religious grounds?

On March 10 the Obama Administration announced a 30-day comment period before rescinding (overturning) conscience clause regulation established during the last days of President Bush's term. To put these soon-to-be challenged regulations in perspective, let's quickly look at the recent history conscience clause laws and religious freedom in health care.

When Roe v. Wade was decided in 1973, there was concern that physicians and other care practitioners would be legally compelled to perform abortions or sterilizations even if they found the procedures religiously repugnant. At that time, Senator Frank Church of Idaho sponsored an amendment that protected federally-funded physicians or hospitals who objected to the procedures on a moral or religious basis from having to perform the procedures. The amendment passed the senate 92-1 and became the first conscience-clause law.

The conscious clause laws were popularly accepted and promoted. Over the next years, nearly every state passed conscious-clause laws. Even Supreme Court Justice Harry Blackman, who had authored Roe v. Wade, approved of such laws as appropriate protection for physicians and hospitals.

In December of 2008, the White House announced that it would be enacting new conscience- clause regulation that would further define the 'right of conscience.' As stated in the new regulation, "The Department is concerned about the development of an environment in sectors of the health care field that is intolerant of individual objections to abortion or other individual religious beliefs or moral convictions. Such developments may discourage individuals from entering health care professions. Such developments also promote the mistaken belief that rights of conscience and self-determination extend to all persons, except health care providers..." The regulation also stated a purpose of aiding for religious entities (such as Catholic hospitals) that might suffer penalties for their abstention from objectionable practices. Bush regulation here

The new regulation established that any health care worker with "reasonable connection to the procedure" could refuse to participate if they found it morally objectionable. This could include nurses, technicians, pharmacy techs, etc. The regulations also left the door open for objections to procedures beyond abortion and sterilization. It could be interpreted to apply to any procedure that health care providers morally oppose.

The Bush regulation stirred controversy and were immediately followed by lawsuits in seven states claiming that the regulation "sacrifices the health of patients to the religious beliefs of medical providers." Organizations like Planned Parenthood called for a recision of the regulation to defend "the rights of patients to receive complete and accurate reproductive health information and services, without fear that health care providers will withhold vital information and services based on their personal biases."

On March 10 the Obama Administration announced a 30-day comment period before rescinding the Bush regulations. The recision of the regulation would not annul standing laws like the Frank Amendment or the Weldon Amendments, but would strike down in its entirety the Bush regulations. And so we return to our original question: What right do medical care practitioners have to decline treatment based on religious beliefs?

The Bush regulations also compel us to us ask specifically, should practitioners' choice to deny treatment be limited to certain procedures? Also, should conscience-clause law protection be limited to the primary provider? Do doctors have more of a right than nurses or technicians to refuse to participate in an abortion?

In contemplating these questions, I can't help but agree with the statement of the Bush regulation that there is a "mistaken belief that rights of conscience and self-determination extend to all persons, except health care providers..." I find myself very uncomfortable with the political wrangling and showdowns between the pro-lifers and pro-choicers when the First Amendment of the Constitution is already explicit:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

Perhaps the executive branch can get away with these regulations because the Amendment specifies only Congress' limits to such lawmaking. At any rate, the practice of legislating through White House regulations is probably far outside of constitutional limits.

I believe that it is 'self-evident' that these 'God-given', 'inalienable' rights are truly universal. They apply to doctors, the same as nurses, the same as all Americans and all humanity.

To be truthful, I don't know how meaningful these regulations really are. My understanding of the Bush regulation is that it simply enforces current law. With it being struck down, current conscience-clause law still stands and has not been changed. However, I believe that conscience-clause law will continue to be severely trampled if the regulation is rescinded.

With regards to the Bush regulation. I think it should stand. It upholds current laws, whereas striking down the regulation encourages the disregard of standing law. Striking down the regulation will encourage evil organizations in their fear mongering and efforts to subject American health care providers to their practices. I believe that the right to religious expression, in the workplace or elsewhere, is a God-given right. Infringement of that right is tyranny.

The comment period before recision (overturn) of the Bush regulation ends on April 9. Comments can be sent to proposedrescission@hhs.gov. Or comments can be directly submitted here. Remember that these comments go directly to the Department of Health and Human Services. Demands and impassioned pleas will probably not go as far as well-constructed argument. In particular, the department has asked for:

• "The scope and nature of the problems giving rise to the federal rulemaking," including specific examples, "and how the current rule would resolve those problems."
• Information, with examples, to support or refute allegations that the regulation "reduces access to information and health care services, particularly by low-income women."
• Whether the rule is clear enough "to minimize the potential for any ambiguity and confusion" that might result from it.
• Whether the objectives of the rule could be accomplished "through nonregulatory means, such as outreach and education."

Rusty Scalpel