Thursday, March 26, 2009

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 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


Sacred Heart Adoration said...


Rescission Proposal: 0991-AB49

On April 9, the 30 day comment period will end in which citizens can voice their concern of President Obama's rescission of the conscience clause. This clause allows medical professionals and organizations (such as hospitals) to choose not to provide services which are contrary to their religious beliefs or missions. This specifically pertains to the performance of abortions and sterilizations. Information on the clause and to make a public comment can be found at

The conscience clause has been in effect since the 1970's, for over 30 years. During that time, abortions and sterilizations have grown in both demand and availability, being readily available throughout the country even in rural areas. Therefore, the existence of this regulation has in no way limited the ability of all Americans to receive these services if they choose.

This clause has, however, protected the freedom of both medical professionals and medical organizations (a corporation is legally a "person"). It allows those individuals to conduct their medical work without being forced into any conduct that would contradict their faith views. It allows hospitals with faith-based missions to continue to practice as well. Note that Catholic hospitals are the largest provider of hospital services in the United states. Then consider other hospitals with faith based missions, and you can see the import of this clause to allowing these organizations to exist, as well as see that this clause has in no way limited availability of abortion services.

There is an old saying "if it ain't broke, why fix it?". This is true here. After 30 years, this amendment is well tested and has not inhibited the quality of health care provided to Americans.

So why now is the Obama administration attempting to rescind this clause? We don't know, but clearly it is not for the purpose of improving health care.

What will be the results if this is rescinded? Catholic hospitals across the country, the largest provider of hospital services in this nation, will close down. Medical professionals of all faiths will risk losing their job due to religious discrimination or have to willingly give up their job. So the quality of healthcare IN EVERY SINGLE AREA OF HEALTH will be drastically and negatively affected, as well as religious discrimination and persecution institutionalized in our healthcare system. And all done to force mandatory abortion services that are not even needed because sufficient facilities and personnel exist to provide these.

So why now is I the Obama administration attempting to rescind this clause? It makes absolutely no sense.


Our country was founded upon religious freedom. To repeal this clause and force individuals as well as medical organizations to conduct acts against their religious beliefs or corporate mission statements is discrimination. There are sufficient providers of abortion and sterilization services across the country, even in rural areas; it is clearly not necessary to force medical professionals and organizations to conduct these services. This clause has been in effect for over 30 years without causing any undue hardship to the American people. Therefore, there is no sound, need-based reason for rescinding this clause. The reason can only be discrimination against people of faith. In rescinding this clause, our government is potentially ruining our entire health care system simply for the purpose of making abortion mandatory (note, it is already easily available). Even citizens with no particular faith belief can see how their overall health care will be adversely affected by this action. This defies all logic and so can only be hate based.

It is important that every American, whether or not of any faith belief, stand up and insist this clause remain in effect for the continued quality healthcare of all American citizens IN ALL FIELDS OF MEDICINE. Don't let a political agenda destroy our healthcare system.

Comments: 202-456-1111
Switchboard: 202-456-1414




ENTER 0991-AB49 into Search Documents
(You will be able to get the facts here)
Then click on Send a Comment or Submission

Rusty Scalpel said...

I agree that it is vitally important to voice opposition to the President Obama's proposed recission of the Bush conscience regulations. However, we must understand that President Obama is not rescinding the conscience clause itself. He is rescinding Bush regulations that only went into effect in January of this year.

Protection of religious freedom is imperative. The Bush regulation was designed to further protect those freedoms. It was a clarification of the conscience clause regulations that (among other things) broadened the sphere of health care workers protected under the conscience clause laws. However, rescinding that regulation does not affect doctors' and pharmacists' rights to refuse abortions, sterilizations, and other morally reprehensible procedures.

I definitely agree with the Sacred Heart injunction to voice opposition to the recission. The Bush regulation was very important. However I think it is important to recognize (especially as we attempt to persuade those on the recission committee) that we are not directly dealing with the conscience clause law.

Rusty Scalpel

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Jake said...

I'm a law student writing a journal paper on this topic. I've been reading a lot of articles and reviewing a lot of case law on the topic, as well.

You wrote a very good synopsis of how conscience clause legislation has come about in our country, but I think that you are giving the Bush legislation a bit too much credit.

You are right that the Bush legislation did very little considering the Church Amendments and all of the state laws are still in effect. Obama's rescission of this piece of legislation will really not do anything to limit the numerous privileges already afforded health care religious objectors.

The criticism on the bill, and the reason I believe that the current administration wanted to remove it, is that it was poorly written. By using overly broad language, the clause essentially gave any healthcare professional the ability to refuse treatment for any reason as long as he says it is against his religion or moral beliefs.

Without going into too much detail here for obvious reasons (there are hundreds of cases on this particular topic), there is a positive duty of care that has been established for healthcare professionals to treat patients. This applies to the doctor-patient relationship and in some cases for emergency room doctors and personnel.

The Bush conscience clause legislation could be interpreted to include these instances.

There are many reasons why this could be a bad thing, but probably the most important reason is that the law was written in such a way that it is unclear what exactly is being protected. Judges and lawmakers detest legislation like this because it does little more than to make the area of law a bit cloudier. If Obama had not rescinded the law, it would have more than likely ended up being overturned in a court. If the law was reviewed, there is a chance the Supreme Court could decide that all conscience clauses violate the duty of care and then the law would end up having the exact opposite affect that it was meant to have.

So basically I am not sure why you care that this law was overturned. Conscience clauses are still in effect country-wide and there was a good chance that the law interfered with well established judicial precedent that could have nixed all conscience clause protections.