New HHS division, conscience freedom laws and policies protect patients and physicians
March 1, 2018
by Jonathan Imbody
This excerpt is the sixth in a series of essays on conscience in healthcare, by Jonathan Imbody, Vice President for Government Relations of the Christian Medical Association and Director of Freedom2Care. The essays respond to "Physicians, Not Conscripts — Conscientious Objection in Health Care," Ronit Y. Stahl, Ph.D. and Ezekiel J. Emanuel, MD, PhD, New England Journal of Medicine 376;14, April 6, 2017.
In January 2018, the U.S. Department of Health and Human Services announced the creation of a new division within its Office of Civil Rights—the Conscience and Religious Freedom Division. The new division now serves as a center for information on 25 federal conscience laws, outlined on the division's website, including:
- The Church Amendments, enacted in the 1970s "to protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortion or sterilization procedures if doing so would be contrary to the provider’s religious beliefs or moral convictions."
- Public Health Service Act § 245, which "prohibits the federal government and any state or local government receiving federal financial assistance from discriminating against any health care entity on the basis that the entity refuses to undergo training in the performance of induced abortions" and related actions.
- The Weldon Amendment, which prohibits government "discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions."
The new HHS conscience and religious freedom division also serves as a recipient of complaints of discrimination on the basis of conscience.
"We are thankful to see these vital conscience freedoms restored in healthcare," noted Christian Medical Association Senior Vice President Gene Rudd, MD in a news release. "For millennia, medical ethics have provided for conscientious opposition to abortion by physicians who took up the practice of medicine as a healing art never to be used for the destruction of human life. And until recently, our government reinforced those ethical principles with conscience protections. We are heartened to see our government heading back in the direction of these vital freedoms that protect patients, medicine and freedom in our country."
In that news release, I added, "As Americans who have inherited a nation founded upon freedom of faith, conscience and speech, we can agree that the government must never force individuals to violate their deepest held beliefs on vital and extremely controversial issues such as abortion. When our leaders forget these principles, and take to forcing nuns to participate in matters they consider wholly immoral, the American people realize that our fundamental freedoms are in jeopardy. If the government can take away the rights of one group, then no one is safe from government coercion.
"These actions today by the administration are an important step back in the direction of freedom and respect for one another, and we look forward to more actions in the future, including restoration of the conscience rule for health professionals that President Obama gutted."
While many lauded the new division as protecting fundamental conscience freedoms and First Amendment rights, some political activists issued "hair-on-fire" statements condemning the division as devaluing humanity and promoting religious bigotry.
"This is the use of religion to hurt people because you disapprove of who they are," asserted Harper Jean Tobin, the National Center for Transgender Equality's director of policy, in a statement published by The Washington Post.
No one's objecting to treating "particular classes of patients"
Writing in the New England Journal of Medicine, Obamacare architect Ezekiel Emanuel and Penn Professor Ronit Stahl also equate conscience objections with bigotry, asserting, "No matter how sincerely held, objections to treating particular classes of patients are indefensible — regardless of whether the objections are based on race, gender, religion, nationality, or sexual orientation."
Well, sure, that would be indefensible—if it were actually happening. But, of course, the authors provide no examples of such insidious discrimination. It's just useful for stirring up an emotional response: "I don't want to be labeled a bigot, so let's get rid of these conscience laws that legalize bigotry!"
When President Obama gutted a two-year-old Bush-era conscience protection regulation, an opponent of conscience rights exclaimed to the Washington Post, "Without the rescission of this regulation, we would see tremendous discrimination against patients based on their behavior and based just on who they are. We would see real people suffer, and more women could die."
Of course, no real-life examples were cited, and apparently none occurred in the years after the conscience protections took effect.
The truth is that conscience protections do not allow physicians to refuse to treat "particular class of patients." In fact, faith-based health professionals (who depend on conscience protections against coercion) in particular have gone to great lengths to purposefully reach out to the marginalized, the stigmatized and victims of discrimination.
Health policy will always reflect opinions
The Washington Post article on the new HHS conscience and religious freedom division also quoted Sarah Warbelow, legal director for the Human Rights Campaign, who asserted that the policy seeks to "devalue the humanity of LGBTQ people. Every American deserves access to medically necessary health care, and that health care should not be determined by the personal opinions of individual health care providers or administrative staff."
While real-life examples of medical professionals "devaluing the humanity of LGBTQ people" are scarce or nonexistent, examples of personal opinions impacting healthcare are ubiquitous. It's also notable that at the same time that Ms. Warbelow argues to disallow the "personal opinions" of health professionals from influencing healthcare, she argues that her own personal opinion, her group's own ideology, must direct healthcare.
Opponents of conscience protections frequently assert the mantra that conscientious health professionals are forcing their opinions on others. But pro-life physicians do not force their patients or anyone else to adopt a pro-life view; they simply seek exemption from coercion to kill.
Yet intolerant abortion advocates cannot seem to countenance diversity of opinion in healthcare. They would force pro-life physicians to perform or refer for abortions or else sacrifice their careers. Then they complain with straight faces about pro-life physicians forcing their opinions on others.
The idea that health professionals must ignore their moral and ethical convictions and perform any and all legal procedures is, in itself, a personal opinion expanded into an ideology—"an orientation that characterizes the thinking of a group or nation" (according to the Advanced English Dictionary definition).
The conscience debate will impact the future of healthcare
In a free society, we can and should debate the question: Would eliminating conscience freedoms be good or bad for healthcare, for patients, for health professionals, for the country? But to assert that health professionals who base their practice of medicine on certain ethical prohibitions are uniquely forcing their "personal opinions" on others is patently hypocritical.
Healthcare policies always reflect opinions; they are conceived and implemented by individuals who have personal opinions and by groups that have ideologies. Our democratic republic is designed to debate opinions freely and then translate the best opinions into laws that benefit society. We elect lawmakers who share our opinions and will translate those opinions into laws and policies.
For example, the law that imposed the Affordable Care Act (ACA) on the nation clearly reflected the opinions and big-government ideology of Democrats. The repeal and replacement of the ACA clearly reflected the opinions and small-government ideology of Republicans. Even if Congress decided to get out of healthcare altogether, that decision to disengage would be a policy formed by opinions and ideology.
For millennia, medicine and law have provided room for conscience freedom—differing convictions on controversial issues—among health professionals. Many would continue that long-standing policy of tolerance for reasons both pragmatic and philosophical:
- Tolerance maximizes healthcare access by enabling a breadth of professionals to practice medicine;
- Tolerance comports with professionalism and professional judgment (a health professional being one who professes to adhere to an ethical standard that guides his or her practice of medicine);
- Tolerance offers patients the ability to choose health professionals in line with the patient's own values; and
- Tolerance reflects core American principles of freedom of conscience, faith and speech.
The current debate, then, is not about "imposing opinions;" it is about whether or not our long tradition of tolerance for a range of ethical positions should be continued or discontinued. The result of that debate will significantly impact the future of medicine, healthcare access and religious freedom.