Essay 16: American Conscience Law and Principles Defy the Anti-conscience Movement in Healthcare
April 4, 2019
by Jonathan Imbody
Health professionals today who hold to historically noncontroversial moral and ethical standards—such as not killing born or unborn patients—face increasing pressures to compromise those moral and ethical standards. The coercive pressures come from ideologues and activists within and outside medicine, from demanding patients and from the government.
In times like this, it’s important for you as a health professional to know your defensive weapons so you can use them when (not if) attacked.
Religious freedom laws provide defensive protections
In 1993, President Bill Clinton signed into law a bipartisan, powerful and increasingly needful federal law, the Religious Freedom Restoration Act (RFRA).1
The RFRA law establishes several principles focused on protecting our First Amendment right of free exercise of religion and restraining the government:
“… from substantially burdening a person’s exercise of religion … except that the government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
So three principles prevail regarding governmental conflicts with your conscience:
The government may not substantially burden your religious exercise—i.e., through fines, job loss, forced participation in activities you find morally abhorrent, etc.
The government had better have a darned good reason—a compelling interest, such as saving lives—for messing with your religious exercise freedom. Historically, not even the country’s security interests during war have been used as a compelling interest to force conscientious objectors from participating in combat.
Assuming satisfaction of the first two requirements above, the government must figure out how to accomplish its compelling interest by using the least restrictive means to accomplish the goal.
So under RFRA, the federal government cannot threaten the ministry of Catholic nuns with the substantial burden of draconian fines simply because the nuns decline to participate in the contraceptives mandate promulgated under the Affordable Care Act (Obamacare).2 The government attempted quite a stretch to claim a compelling interest for a nationwide contraceptives coverage mandate when contraceptives long had been ubiquitous and easily obtained apart from any government mandate. And considering that the United States distributes for free more contraceptives overseas than any other country, doing the same in the U.S. would be a far less restrictive means than forcing conscientious objecting citizens to help pay for and participate in contraceptives against their will.
Similarly, thanks to a preliminary injunction in a federal court case brought by the Christian Medical & Dental Associations and others, the federal government may not force physicians to participate in transgender operations and prescriptions against their medical or moral judgment.3
In neither case could the government demonstrate that it had fulfilled the constitutional obligation to protect conscience apart from a compelling interest, by using only the least restrictive means and without substantially burdening freedom of religious exercise.
How religious freedom law speaks to patient-physician conflicts
The least restrictive means principle outlined in RFRA—figuring out a way to do controversial things without putting conscientious objectors through the wringer—aptly applies to the infrequent cases when physicians and patients cannot agree on a course of action.
For example, a patient may insist on an abortion, which represents a clear moral and ethical violation for a physician who adheres to biblical and Hippocratic standards. Or a patient may want a prescription for contraceptives, which, depending on religious convictions and the contraceptive’s mode of action, may raise religious and ethical concerns for the physician.
In such cases, accommodating a physician’s conscience entails comparatively minor inconvenience for the patient. The patient typically can easily find another doctor, often even within the same practice or institution.
But refusing to accommodate conscience in such situations is a totally different story altogether for the physician.
Refusing to accommodate conscience for a health professional with strong convictions means literally forcing a choice between conscience and career.4 Because when regulation of the practice of medicine—as enforced through law, accreditation, licensure, privileges or contract—hinges on participating in morally controversial practices, health professionals of conscience will no longer be able to practice medicine. This is certainly true of faith-based health professionals who do not, and cannot, separate the faith principles that motivate them to serve others from the faith principles that uphold the sanctity of human life.
Forcing a physician to choose between conscience and career in order to meet a patient’s controversial demand exacts an incalculable price not only on the physician, but also on all of the patients who stand to lose their physician as a result.
It’s hard to imagine any objective observer, absent a blinding ideological compulsion, determining that ending a physician’s medical career is preferable to having a patient simply choose another doctor.
Unfortunately, these days it seems that objective observers are fewer and fewer and blind ideologues are more and more aggressive.
Five First Amendment freedoms bar government coercion
At an even higher level than federal religious freedom law, the First Amendment to the U.S. Constitution guarantees five vital freedoms that enable American citizens to believe as we choose and to live our lives in accordance with our deepest held convictions:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Not coincidentally, the First Amendment deliberately places as first the freedom to exercise our religious convictions without governmental coercion. The government can neither impose a state religion nor make laws preventing our free exercise of religious conviction.
The other four freedoms—freedom of speech, press, assembly and petition—all follow from the freedom to believe and act upon one’s beliefs. They all ensure freedom from government coercion and interference.
The framers of these Constitutional rights, who included physicians, attorneys and other professionals who risked their lives in revolt against governmental oppression, would have deemed absurd and antithetical any notion of excluding professionals from those freedoms and subjecting them to government coercion.
Conscience laws took aim at restoring freedoms threatened by abortion on demand
Yet the exclusion of professionals from conscience protection is precisely what some activists today are asserting. In a New England Journal of Medicine opinion piece entitled, “Physicians, Not Conscripts — Conscientious Objection in Health Care,”5 Affordable Care Act architect Dr. Ezekiel Emanuel and University of Pennsylvania professor Ronit Stahl make a flimsy case against conscience rights in healthcare.
Because Emanuel and Stahl want all health professionals to conform to a particular ideology, they want to remove professional protections for all who differ with that ideology. To buttress this drive for ideological purity, they attempt to separate conscience freedom for health professionals from conscience freedom for other citizens. They specifically allege a contrast between conscience rights for conscripted soldiers and conscience rights for voluntary medical professionals.
They suggest, for example, that when Congress passed conscience laws for health professionals in the early 1970s, the action did not follow from constitutional concerns but merely from an emotional overreaction to war. The authors would have us believe that in the heat of the moment, Congress mindlessly melded two supposedly unrelated issues—conscientious objection to war and conscientious objection to medical moral controversies.
Emanuel and Stahl point to protests against the Vietnam War and military draft as a prime impetus for some of the first statutory conscience protections in healthcare, such as the 1973 Church Amendment to the Public Health Service Act. They note that Democrat Senator Frank Church, author of that 1973 conscience protection law, opposed the Vietnam War, and they attempt to make anti-war concern and not abortion coercion concern the motivation behind conscience law:
“Legislative protection for conscientious objection in health care emerged at the height of conscientious objection to military service. Supporters of conscientious objection in health care explicitly referenced ‘the right of conscience which is protected in our draft laws’ to justify and legitimate it. Yet conscientious objection in health care diverges substantially from conscientious objection to war.”6
Actually, Senator Church included as motivation for his conscience legislation the infamous 1973 Supreme Court abortion decision in Roe v. Wade. That case overturned state prohibitions on abortion and erected abortion on demand as a federal fiat.
As documented in the Federal Register, Senator Church cited not only Roe v. Wade but also an instance where a Federal court had ordered a Catholic hospital to perform sterilizations:
“I see no reason why the amendment ought not also to cover doctors and nurses who have strong moral convictions against these particular operations.”7
So clearly, preventing coerced participation in abortion—and not simply reinforcing conscientious objection to combat as Emanuel and Stahl would have us believe—sent bipartisan conscience protection legislation for health professionals sailing through Congress.
Conscience freedom provides a restraint on government power
Although the Hippocratic Oath has stood for millennia as a bulwark of patient protection, Emanuel and Stahl insist that doctors now must disregard such objective ethical standards in order to “protect” and accommodate patients. Specifically in their view, doctors must accommodate patients by participating in morally controversial procedures such as abortion, even though the Hippocratic oath proscribes abortion. As Emanuel and Stahl are well aware, legal protections for individual conscience and institutional ethics stand as a significant obstacle to abortion as well as to government healthcare edicts.
Emanuel and Stahl’s elevation of the dictates of the state over the rights of the individual contradicts the constitutional principles of a country founded for and upon conscience freedom. It does comport, however, with the expansive government approach of the Affordable Care Act that Emanuel helped design as President Obama’s special adviser on healthcare.8
Corralling government coercion maximizes individual freedom
In advancing their own ideology, activists like Emanuel and Stahl grievously neglect a fundamental principle of our constitutional democracy, which always advances and protects freedom to the greatest extent possible. As reflected in the First Amendment, the freedom to believe and act according to one’s conscience ranks highest among individual freedoms.
“But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others.”9
For this reason, whenever a conflict arises involving an assertion of conscience freedom, Congress and the courts have made clear that the government may only restrict freedom for a compelling interest, without substantially burdening conscientiously concerned individuals and by using the least restrictive means possible.
This same sensible approach can help resolve conflicts in healthcare, when patients and physicians disagree on controversial procedures and prescriptions. Applying the principles of compelling interest, least restrictive means and avoiding substantial burdens can help ensure that political activism and ideology do not drain medicine of some of its most principled and dedicated professionals, in the process depriving some of the most needy patients of their competent and compassionate care.
Conscience-driven health professionals and students, take note: Do not expect this battle to resolve itself. Protecting your conscience and career requires your standing up and speaking out, even at professional and personal risk.
Prepare to winsomely and courageously battle for your beliefs in conversations with colleagues, professors, lawmakers, neighbors and patients. Equip yourself now by learning about conscience law at https://www.freedom2care.org/laws-regs-cases and by using the resources at www.Freedom2Care.org/resources.
1 For RFRA bill text, cosponsors and more, see https://www.congress.gov/bill/103rd-congress/house-bill/1308/text.
3 A federal district court in 2016 issued a federal preliminary injunction issued in the transgender mandate case, currently titled Franciscan Alliance v. Azar. The Becket law firm represented the Christian Medical Association, Franciscan Alliance and several states in the lawsuit. For more, see https://www.becketlaw.org/case/franciscanalliance.
4 A survey conducted for the Christian Medical Association’s Freedom2Care by The Polling Company, Inc. revealed that 92 percent of faith-based physicians said they would be forced to leave medicine if coerced into violating the faith tenets and medical ethics principles that guide their practice of medicine. See www.freedom2care.org/polling.
5 “Physicians, Not Conscripts — Conscientious Objection in Health Care,” Ronit Y. Stahl, Ph.D. and Ezekiel J. Emanuel, M.D., Ph.D., New England Journal of Medicine 376;14, April 6, 2017.
6 Stahl and Emanuel, p. 1380.
7 119 Congr. Rec. S5717–18 (Mar. 27, 1973), quoted in Federal Register / Vol. 82, No. 197 / Friday, October 13, 2017 / Rules and Regulations, p., 47845.
8 “Bioethicist Becomes a Lightning Rod for Criticism,” New York Times, Aug. 24, 2009, http://www.nytimes.com/2009/08/25/health/policy/25zeke.html accessed 9/19/17.
9 Thomas Jefferson, Notes on the State of Virginia, Query 17, 157—61, 1784.