CMDA's The Point

Conscience Rights: Does Your Medical Association Support Them?

June 3, 2019
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by Anne Foster

Where leading medical institutions stand on the right of conscience and religious freedom can sway court decisions and influence federal legislation. Therefore, it is important to know where prominent groups, such as the American Medical Association, the American College of Obstetricians and Gynecologists and the World Health Organization, stand on these issues. Each of these groups represents a vast number of medical professionals, and yet their policies do not always accurately express their members’ diverse views, nor do they defend their members’ first amendment rights.

In some cases, the stances of medical organizations stand in direct opposition to the principles in federal law and regulations, which are outlined at the end of this essay.

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Medical Organizations

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American College of Obstetricians and Gynecologists

The American College of Obstetricians and Gynecologists (ACOG) was founded in 1951 and boasts 58,000 members, according to their website.

ACOG is known for aggressively advocating for accessible abortion services. ACOG’s position on conscience rights is clearly conveyed by their definition of abortion as a standard medical procedure and method of family planning.

Their abortion policy states:

“While ACOG recognizes and respects that individuals may be personally opposed to abortion, health care providers should not seek to impose their personal beliefs upon their patients nor allow personal beliefs to compromise patient health, access to care, or informed consent.”

Regarding federal and state abortion regulations, ACOG’s policy reads:

“ACOG is opposed to laws and regulations that operate to prevent advancements in medicine. For example, laws that prohibit health care providers from following current evidence-based protocols for medical abortion disregard scientific progress and prevent providers from offering patients the best available care. Likewise, the state and federal laws that prohibit specific surgical abortion procedures disrupt the evolution of surgical technique and prevent physicians from providing the best or most appropriate care for some patients …”

“ACOG opposes unnecessary regulations that limit or delay access to care. The intervention of legislative bodies into medical decision making is inappropriate, ill-advised, and dangerous.”

“ACOG opposes the harassment of abortion providers and patients.”

ACOG opposes the current White House Administration’s final rules, the Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act and the Moral Exemptions and Accommodations for Coverage of Certain Preventive Services. These rules allow for a religious or conscientious exemption from the contraception mandate under the Affordable Care Act.

ACOG’s news release states, “The final rules follow an alarming pattern of medically unnecessary decisions in women’s health policy that, together, undermine women’s access to care and advance harmful, medically inaccurate rhetoric about women’s health.”

Additionally, ACOG objects to the U.S. Department of Health and Human Services’ (HHS) February 2019 Title X rule. ACOG views the new revisions as a harmful impediment to reproductive healthcare accessibility. On April 9, ACOG, along with various other medical groups, filed an amicus brief in Oregon, Washington and California in support of the motion for a preliminary injunction to stop the issued changes to Title X.

 

American Medical Association

Established in 1887, the American Medical Association (AMA) is the largest association of physicians and medical students in the United States.

In recent years, AMA’s position on conscience rights has shifted. In 2014, AMA voted in favor of policies within their own organization to support conscience protections in healthcare. Their 2014 statement reads, “This policy supports giving physicians’ latitude to practice in accordance with their own well-considered, deeply held beliefs that are central to their self-identities.”

However, in 2018 AMA opposed the HHS Protecting Statutory Conscience Rights in Health Care; Delegations of Authority rule. AMA publicly requested the withdrawal of the rule. Their letter, submitted to HHS secretary Alex Azar, states,

“The AMA fears that, if implemented, the rule would function as a shield for people asserting objections on religious or moral grounds and could permit them to withhold care from already vulnerable groups and create confusion in health care institutions.

‘The proposed rule would undermine patients’ access to medical care and information, impose barriers to physicians’ and health care institutions’ ability to provide treatment, impede advances in biomedical research, and create confusion and uncertainty among physicians, health care professionals, and institutions,’ AMA Executive Vice President and CEO James L. Madara, MD, wrote in the letter.”

In defense of the organization’s change in policy, the AMA states, “According to the AMA Code of Medical Ethics, the freedom to act according to conscience is not unlimited.”

AMA’s most recent contention with HHS actions is their hostility toward HHS Title X regulations. The revisions to the Title X family planning rule protect a physician’s right to not refer their patients for an abortion. On March 5, 2019, the AMA joined with Planned Parenthood to file a lawsuit against the administration regarding the revisions. Their lawsuit states the revised rule would “decimate the Title X program and limit the medical advice physicians can give their Title X patients.” AMA President Dr. Barbara McAneny tweeted, “This blatant violation of patients’ rights under the Code of Medical Ethics is untenable.”

AMA’s main argument highlighted in their brief claims the regulations impose a mandated speech code on family planning discussions between doctors and their patients. In a recent Facebook live video, AMA Senior Vice President and General Counsel Brian Vandenberg stated that the new rule would not only limit speech but is scripting what physicians must say, and they refer to this alleged imposition as “the gag rule.”

(In the wake of the new regulations finalization, HHS released a fact sheet which summarizes and outlines the contents of the rule. Regarding communication between the physician and patient, the rule states: “To preserve open communication between the patient and the healthcare provider, the regulation permits, but no longer requires, non-directive pregnancy counseling, including non-directive counseling on abortion” (emphasis added). HHS reiterates that the regulations do not possess the so-called “gag rule:”

“The final rule does not bar nondirective counseling on abortion, but eliminates the requirement that Title X providers offer abortion counseling and referral.”)

 

American Academy of Family Physicians

American Academy of Family Physicians (AAFP) was founded in 1947 and is the only medical organization devoted to primary care. With more than 131,000 members, AAFP is one of the nation’s largest medical organizations.

In response to the HHS conscience rule, AAFP’s primary concern was the possible discrimination which may ensue if medical professionals are given license to refuse services to patients based on sexual orientation and gender identity. Their statement reads:

“Denying access to care to a patient on religious, ethical or moral grounds is in direct conflict with AAFP policy. There is a distinct difference between declining to participate in a procedure versus denying access to care to an individual patient. The former is a protected right, the latter is an unacceptable shirking of our basic responsibility to care for our patients and contrary to the key underpinnings of the Code of Medical Ethics.”

AAFP believes that given the opportunity, healthcare professionals with strong religious beliefs may use the conscience rights “card” to not only decline to participate in the procedure they deem unethical but refuse to care for that patient in any respect based solely on their sexual orientation or gender identity.

AAFP was equally critical of HHS’ revisions to Title X. AAFP believes the revisions include the so-called “gag rule.” Their press release states,

“The proposed rule forces family physicians to omit important and accurate medical information necessary for our patients to make timely, fully informed decisions. This encroaches on physicians’ codes of ethics and responsibilities to our patients. When our government restricts the information that can be given to women, women will receive substandard medical care and their health will suffer.”

 

Association of American Medical Colleges

Established in 1876, the Association of American Medical Colleges (AAMC) is a non-profit organization, and its members include 173,000 full-time faculty members, 89,000 medical students, 129,000 resident physicians and more than 60,000 graduate students and postdoctoral researchers in the biomedical sciences.

AAMC’s harsh criticism of conscience protections goes back to the Bush Administration’s conscience rule in 2008.

Most groups in opposition to the administration’s proposed “conscience rule,” titled Protecting Statutory Conscience Rights in Health Care, avoid the primary issue of conscience rights altogether. However, AAMC makes the topic their main subject of criticism. AAMC’s comment to HHS begins by expressing their concern that strong conscience protections would allow physicians to put themselves and their priorities above their patients. They claim,

“Those who choose the profession of medicine are taught repeatedly during their medical school and residency training that, in the end, their duty to care for the patient must come first, before self. For example, the American Medical Association Principles of Medical Ethics states, ‘A physician shall, while caring for a patient, regard responsibility to the patient as paramount.” This does not mean that a physician or other health care provider must act in violation of his or her own moral code, but it does mean that a physician has the duty to provide information and to refer the patient to other caregivers without judgment.’”

AAMC then cites Julia Cantor’s article, “Conscientious Objection Gone Awry – Restoring Selfless Professionalism in Medicine.” They note that this article was cited in the rule as an example of bias toward conscience rights. AMMC argues that, on the contrary, Cantor got it right and they support her conclusion that medical professionals of faith or particular moral convictions should discern whether a particular medical specialty is right for them rather than put themselves in a position where their rights would trump their patient’s wishes. AMMC quotes Cantor’s article:

“Dr. Cantor calls on those who ‘freely choose their field’ to evaluate their beliefs in relation to their specialties and whether they are able to provide all legal options for care. ‘As gatekeepers to medicine, physicians and other health care providers have an obligation to choose specialties that are not moral minefields for them. … Conscience is a burden that belongs to that individual professional; patients should not have to shoulder it.’”

Additionally, AAMC’s comment argues whether there even exists a real need for better enforcement of conscience protections. They claim:

“There is no demonstrable need for the proposed rule.”

“As we stated when we commented on the original 2008 Federal Health Care Conscience Rule, no individual or entity in this country has the option to pick and choose the laws to which he/she will adhere. Every health care provider and entity already has the obligation to comply with all applicable federal laws. The Department has offered little evidence that this has not been the case. The Office of Civil Rights has received just forty-four complaints since it was designated with the authority to enforce the Church, Coats-Snow, and Weldon Amendments. The paucity of complaints does not provide compelling evidence of a need for the expansion of OCR’s authority, or the need for changes in the current regulations.”

Despite AAMC’s claims, the Office for Civil Rights continually releases public statements attesting to the efficacy of their recent measures citing the increase in the number of conscience complaints. In a Roll Call article published on April 17, 2019, Roger Severino, the director for the Department of Health and Human Services’ Office of Civil Rights, announced OCR has received 1,333 complaints in the fiscal year 2018 pertaining to religious or moral conscience discrimination.

AAMC’s comment raised a few other concerns pertaining to the rule, with one being the rule is overly expansive in its reach and medical professionals will utilize their “conscience rights” to discriminate against their LGBTQ patients. AAMC writes,

“The proposed rule is overly expansive, allowing physicians and others to avoid engaging in any activity’ with an articulable connection” to the objectionable procedure, ‘include[ing] counseling, referral, training, and other arrangements for the procedure.’” AAMC claims that if a medical professional is able to opt out of referring their patients for abortions, this would be an act which harms their patient.’

In reference to concerns for the LGBTQ community, AAMC wrote:

“This proposed rule would codify what many within and beyond the LGBTQ communities will view as state sanctioned discrimination and allow providers to refuse care or appropriate referrals solely on the basis of their patients’ sexual orientation or gender identity. This stands in stark opposition to OCR’s stated goal to ‘protect fundamental rights of nondiscrimination.’”

 

World Health Organization

World Health Organization (WHO) reportedly represents 10 million physicians worldwide. WHO is a U.S. agency founded in 1947 that specializes in international public health.

WHO’s stance on abortion and abortion accessibility, as well as their views regarding conscience rights, is clearly presented in their paper, ‘Health worker roles in providing safe abortion care and post-abortion contraception,’ published in 2015. The paper suggests that in order to prevent a shortage of healthcare professionals trained in abortion, nurses and midwives should be included in abortion training. The paper goes on to recommend that the movement toward self-induced abortions be encouraged. They claim it is an approach that “can be empowering to women.” Regarding the issue of conscientious objection, the paper states, “conscientious objections, where allowed, should be regulated.”

(The Centre for Human Rights in New York criticized WHO’s paper asserting that it, “not only jeopardizes women by lowering medical standards, it also threatens the conscience rights of nurses, midwives, and other non-physician health care providers.”

In October 2018, Director General of the European Centre for Law and Justice Gregor Puppink gave his analysis and comments regarding WHO’s official statement on abortion, which was to be voted on that month. Puppink had major reservations due to the lack of strong wording regarding conscience protections. Puppink was particularly troubled by the phrase to “ensure the continuity of medical care by a qualified colleague.” He said, “This obligation of referral violates the conscientious objection of doctors, who are asked to cooperate to a practice they condemn.”

When WHO’s statement on abortion was released, the wording Puppink found problematic was retained.

The Catholic Medical Association’s critique of WHO’s 2018 revisions to their abortion statement argues that WHO’s proposed contentious stance toward conscience rights flies in the face of the original intent of WHO’s mission. The Catholic Medical Association noted the irony that WHO was founded in 1946 in response to the Nazi atrocities during World War II and promotes itself as “evaluating and codifying ethics in healthcare.” Catholic Medical Association was joined by Christian Medical & Dental Associations, American Association of Pro-Life Obstetricians and Gynecologists, American College of Pediatricians and others in their denouncement of WHO’s policy changes.)

 

Current Health and Human Services Department’s Actions Concerning Conscience Rights and Religious Freedom

Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act: Finalized October 13, 2017, provides an exemption from the contraceptive coverage mandate to entities that object to services covered by the mandate based on sincerely held religious beliefs. For more information, click here.

Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act: Finalized October 13, 2017, provides protections to non-profit organizations and small businesses that have non-religious moral convictions opposing services covered by the Affordable Care Act contraceptive mandate. For more information, click here.

Title X Family Planning Rule: Finalized February 22, 2019, the final rule contained revisions to the Title X family planning program. The many revisions focused primarily on prohibiting Title X funds to “to perform, promote, refer for, or support abortion as a method of family planning.” For an extensive summary of the final rule, click here.

Protecting Statutory Conscience Rights in Health Care: Finalized May 2, 2019, grants to the Office for Civil Rights (OCR) the authority to ensure that all recipients of HHS funds comply with federal laws that protect the rights of conscience and prohibit discriminatory policies and practices. To read the final rule, click here. To read the final rule fact sheet provided by HHS, click here.

 

Federal Statues Regarding Conscience Protections

The Church Amendments: Enacted in 1970, the Church Amendments protect individuals and entities who object to performing or assisting in abortion or sterilization procedures based on their religious beliefs or moral convictions. For more information, click here.

The Public Health Service Act: Enacted in 1996, the Public Health Service Act prohibits the federal, state or local government from discriminating against any healthcare entity based on their refusal to undergo training for abortion services, provide or refer an abortion training program, or attended a post-graduate physician training program that did not include abortion training. For more information, click here.

The Weldon Amendment: The Weldon Amendment has been included in each Health and Human Service’s appropriations act since 2005. The Amendment states, “[n]one of the funds made available in this Act [making appropriations for the Departments of Labor, Health and Human Services, and Education] may be made available to a Federal agency or program, or to a state or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” For more information, click here.

The Affordable Care Act: The Affordable Care Act was recently revised to include conscience protections for health insurance exchange programs. The act provides that no health plan can discriminate against any individual healthcare provider or healthcare facility due to their unwillingness to pay for, provide or refer for abortions. This also extends to conscience protections regarding assisted suicide. For more information, click here.

 

Organizations in Support of Conscience Rights

3 Comments

  1. Avatar Cheyn Onarecker on June 3, 2019 at 3:35 pm

    I am always amazed at the short-sightedness of those who insist that medical students have a responsibility to avoid certain specialties that might impinge on their conscience rights. It doesn’t matter that the student might be absolutely captivated by a particular specialty and would bring energy, compassion, and expertise to her patients. The reigning elite of that specialty – those who run the society meetings and write the policies – have determined what is ethical and what is not, and no dissent is permitted. Rather than allow a physician the freedom to practice medicine according to her conscience, the arbiters of moral impropriety would force the clinician to comply or remove her from medicine altogether. The loss of outstanding young men and women entering particular specialties (and medicine, in general) would be devastating to their future patients and to our profession. Our profession and our society will be much better off if we continue to support conscience safeguards that welcome young people who are committed to practicing medicine with integrity.

  2. Avatar Felipe E Vizcarrondo on June 4, 2019 at 12:54 pm

    WHO is one of the many organizations of the United Nations.

  3. Avatar Jerry Wittingen on June 10, 2019 at 8:14 pm

    Again we see the god of autonomy raise its deformed head. Patient autonomy is the mantra of the elites in medicine, who by and large, are not in touch with the majority of practicing physicians. Autonomy is the result of a godless worldview in which each individual is the arbiter or right and wrong. There are no absolute standards, no God who is the origin of life and the source of morality.
    I am a retired OBGYN and vigorously oppose the stance of ACOG.

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