A Primer on Protecting Healthcare Rights of Conscience

 

by Denise M. Burke1

Vice President & Legal Director, Americans United for Life

 

Over the last few decades, abortion advocates and others have launched a concerted campaign to force hospitals, healthcare institutions, health insurers, and healthcare providers to provide, refer, or pay for abortions. Their determined effort to eviscerate the concept of "conscience" and the freedom to follow one's religious beliefs from the medical profession has resulted in the following:

Sadly, this represents only a small sampling of the mounting attacks on the rights of healthcare professionals to provide medical care without violating their ethical or moral standards and/ or their religious beliefs.

 

Moreover, in recent years abortion proponents and their allies have specifically targeted prolife pharmacists. Their goal is to require pharmacists to dispense contraceptives (including emergency contraceptives), forcing them to choose between their livelihood and their moral and/or religious beliefs. Although the U.S. Constitution protects the free exercise of religion, allowing one to follow what his or her conscience morally dictates, the abortion lobby is turning the debate into a referendum on alleged "refusals" to provide women "access" to controversial reproductive procedures.

 

The abortion lobby and their allies recognize that if they can establish legal precedent to coerce someone to violate their conscience regarding contraceptives, they can then easily extend that legal precedent to coerce pharmacists to dispense RU-486 (the so-called "abortion pill"), to coerce medical students to participate in abortion training, and to coerce doctors to participate in surgical abortion.

 

One interesting footnote to the debate surrounding rights of conscience has been recent legal action in California and Missouri regarding capital punishment. Physicians (primarily anesthesiologists) in both states have refused to participate in capital punishment based on their abhorrence of the act of ending life. Their right to refuse has been lionized by the press and others, but has not been characterized as a right of conscience.

 

In the Line of Fire: Pharmacists' Rights of Conscience

 

Luke and Joan Vander Bleek have spent their married life building a family and a business. They are the proud parents of four daughters and the owners of four pharmacies in rural Illinois. Working in a pharmacy since he was sixteen, Luke is a "pharmacist's pharmacist:" careful, considerate, well-read, devoted to patients, and committed to serving the community. He values serving patients' healthcare needs so that they can live happy, healthy lives. When Luke learned through his own study and from the manufacturer's own literature that the morning-after pill (also know as emergency contraception or Plan B) destroys human life by preventing a fertilized egg from implanting in the mother's womb, he realized that he could not -- in good conscience -- sell these drugs and that his pharmacies could not likewise dispense them.

 

On April 1, 2005, Illinois Governor Rod Blagojevich issued an emergency order forcing every pharmacy in the state to dispense the morningafter pill and other emergency contraceptives "without delay." Later, the emergency rule was made permanent. Forced to dispense drugs that cause death, Luke and Joan Vander Bleek decided that they would rather close their business than dispense a drug that is bad for women and kills unborn children. They vowed to fight the Governor's action.

 

The Vander Bleeks filed suit challenging the Governor's rule as an improper use of government power and an infringement of state and federal constitutional protections. Their challenge is currently pending before the Illinois Supreme Court.

 

Not only has Governor Blagojevich's order effectively forced pharmacy owners and pharmacists to choose between their conscience and careers, but it has also forced pharmacists to contemplate whether they can even continue in their chosen profession.

 

This is a battle that will be waged across the country, pitting men and women of conscience against those who seek to compel healthcare providers to violate their conscience and provide morally objectionable services, including dispensing destructive drugs.

 

Overview

 

Often thought of as a contemporary problem, the issue of rights of conscience was referenced and considered by our Founding Fathers. For example, Thomas Jefferson wrote, "No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Moreover, traditional western thought has understood that individual conscience is a guide for action and is indispensable to appropriate action.

 

Key Terms

  • Right of Conscience Protection -- Shields physicians and other healthcare providers from liability, adverse administrative, and/or other consequences for refusing to participate in any healthcare procedure or service that would violate their moral conscience, ethical standards, or religious beliefs.
  • Conscience -- Moral standard(s) that an individual has accepted and that regulates his/her actions and behavior. Archbishop John Myers, in a pastoral letter, stated, "By definition, conscience is the intellectual act of judgment of what is right and wrong to do or not to do. It is the last best judgment of what one ought to choose. Thus, conscience must be formed through education and prayer, and be informed by [religious faith]." Simply, conscience is at the heart of all decision-making.
  • Healthcare providers -- A broad term used to describe individuals working in the healthcare field. This includes doctors, nurses, medical students, pharmacists, medical assistants, pharmacist assistants, medical researchers, and others. All workers engage their conscience in their work; in a particular way, healthcare workers engage their conscience in caring for patients. To provide the fullest possible protection for individual freedom, this term should also be construed to include institutions such as public and private hospitals and health insurance companies.
  • Healthcare procedures -- Any procedure or service performed in a healthcare setting. All healthcare procedures -- such as surgery, outpatient treatment, clinical care, and medical research -- are acts during which healthcare providers engage their consciences.

Talking Points

 

In the ongoing debate over the rights of conscience of healthcare providers, misinformation and hyperbole abound (especially from those seeking to coerce conscience). However, a full and fair debate of the issue requires an understanding that:

Myths & Facts

 

Healthcare Rights of Conscience -- Generally:

Myth: It is unconstitutional for healthcare providers to refuse to provide abortion because women have a right to obtain abortion with no undue burden.

 

Fact: First, there is no right of access to abortion. In fact, the abortion right announced in Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 404 U.S. 833 (1992), is the right of a woman to choose whether to terminate a pregnancy without interference from the government. Those cases cannot be read to give any patient, let alone the government, the authority to violate the fundamental freedom of conscience by forcing a healthcare provider to perform an abortion or any other controversial procedure.

 

Laws that protect the civil rights of healthcare providers do not forbid women from obtaining abortions. They merely protect healthcare providers from acting contrary to their consciences by providing them a right to refrain from participating in an abortion.

 

In fact, the United States Supreme Court (USSC) has expressly recognized that (federal or state) governments are not required to facilitate abortions by funding them. In Harris v. McRae, 448 U.S. 297 (1980), the Court upheld a federal ban on the use of federal Medicaid funds for abortions except in cases to preserve the life of the mother. In its reasoning, the Court noted that the abortion right created in Roe did not establish an entitlement to abortion. Rather, the Court said, Roe merely created limits on state action. Further, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), the Court upheld a state statute that prohibited state-run medical centers from providing abortions except to save the life of the woman. Therefore, legislation protecting healthcare providers' rights to refrain from facilitating abortion does not place an undue burden on a woman's right to abortion, because women do not have a right to force an individual or institution, including the government, to provide it.

 

 

Myth: Additional right of conscience protection is unnecessary because my state already has a conscience clause law.

 

Fact: Only two states (Illinois and Mississippi) protect the rights of conscience of all healthcare providers, institutions, and payers (e.g., health insurance companies) who refuse to provide any healthcare service based on a religious or moral objection. Although 45 other states and the federal government have adopted conscience clauses, these clauses are inadequate because they usually protect the right to object to participating in abortion only and do not offer any affirmative protections. Moreover, many of the current laws do not protect all healthcare providers. For example, pharmacists are often excluded from coverage in these statutes and therefore lack affirmative protection of their right to decline providing emergency contraception or other drugs that may act as abortifacients.

 

 

Myth: Conscience protection is a movement of the so-called "religious right" and is designed to promote one religious viewpoint.

 

Fact: Conscience is at the heart of the American experience. Most Americans recognize the religious freedom found in the First Amendment of the United States Constitution. It reads: "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."

 

What Americans may not realize is that an early draft of the Amendment written by James Madison included the following: "The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed. No state shall violate the equal rights of conscience of the freedom of the press, or the trial by jury in criminal cases."

 

The point is that conscience protections did not spring up recently -- say, during the Vietnam War era -- but are a long-standing part of the nation's baric. It is also a pluralistic right, one embraced by Christians and non-Christians alike. It is not based on respecting one faith but respecting the integrity of all individuals.

 

 

Myth: The legal protection for healthcare providers' rights of conscience will endanger the lives of patients because it will allow healthcare providers to decline to provide healthcare services and thereby deny access to patients.

 

Fact: Rights of conscience protections affirm the need to provide quality care to patients and do not interfere with existing medical malpractice standards. They merely acknowledge that certain demands of patients, usually for procedures that are life-destructive and not life-saving, must not be blindly accommodated to the detriment of the rights of healthcare providers

 

Individuals and institutions do not lose their right to exercise their moral and religious beliefs and conscience once they decide to become healthcare providers. Nothing in the laws protecting healthcare rights of conscience prevent others from providing the healthcare service to which an individual conscientious objection has been made. Conscientious objections are most often raised concerning elective services, such as abortion, contraception, sterilization, physician-assisted suicide, and withdrawal of nutrition and hydration, rather than necessary or lifesaving services. Therefore, the lack of participation in these practices by a healthcare provider or institution would not endanger the lives of patients. Additionally, the federal Emergency Medical Treatment and Active Labor Act (EMTALA) requires hospitals to care for all pregnant women facing emergency situations, including caring for an unborn child. Nothing in this statute requires that abortion be provided as a "treatment."

 

Finally, abortion proponents are increasingly couching their arguments with the language of women's right to healthcare access. It is worth noting that there is no fundamental right to healthcare and therefore no overriding duty to provide it against your conscience. Also, the term "access" is a red herring, as there is no real problem with a patient going to another healthcare provider for service.

 

 

Pharmacists' Rights of Conscience:

Myth: The battle over pharmacists' rights of conscience is about contraceptives and not abortion.

 

Fact: Emergency contraception can act as an abortifacient. Moreover, for abortion proponents and their allies, the real crux of this contentious issue is removing pharmacists' freedom of conscience now so that they will not be able to object to dispensing abortifacient drugs (like RU-486) in the future.

 

 

Myth: Pharmacist rights of conscience are particularly burdensome to rural and low-income women, who may be unable to travel to another pharmacy to have their prescriptions filled without considerable hardship.

 

Fact: An alternative pharmacy is almost always available to women and others affected by a pharmacist's conscience objection to filling a particular prescription. No state is limiting access so significantly that affected individuals cannot have their prescriptions filled.

 

 

Myth: Pharmacists who refuse to fill lawful prescriptions for contraception will also refuse to transfer them to another pharmacy.

 

Facts: When faced with filling a morally objectionable prescription, most pharmacists simply opt out of the situation and hand the script back to the customer. However, true protection for conscience means that a pharmacist should not be compelled to participate -- even by referral -- in the dispensing of the drugs that he or she finds morally or ethically objectionable.

 

 

Myth: Women are regularly being harassed and harangued by objecting pharmacists.

 

Fact: In general, pharmacists asserting their rights to conscience have been professional in their actions.

 

 

State of the States: Where Are We Now?

 

Protections Under State Law:

Forty-seven states provide some degree of protection for healthcare rights of conscience. Two states, Illinois and Mississippi, have broad protections for all healthcare providers in all healthcare settings. Forty-five states have more narrow protections, usually for doctors and related to abortion service.

 

Protections Under Federal Law:

Federal law provides a total of nineteen protections for conscience rights.2 The United States Congress first addressed the issue of conscience rights for healthcare providers just weeks after the USSC handed down Roe v. Wade. In 1973, Congress passed the Church Amendment (named for its sponsor, Senator Frank Church). The Amendment provides that the receipt of federal funds in three federal programs cannot be used as a basis to compel a hospital or individual to participate in an abortion or sterilization procedure to which the hospital or individual has a moral or religious objection.

 

Federal law also provides broad protections from government discrimination for health care "entities" and individuals that decline to participate in abortions.

 

The most recent federal conscience protection, the Hyde-Weldon Conscience Protection Amendment, provides that no federal, state, or local government agency or program that receives funds in the Labor/HHS appropriations bill may discriminate against a healthcare provider because the provider refuses to provide, pay for, provide coverage for, or refer for abortion. The Amendment is subject to annual renewal and is pending renewal in the FY 08 appropriations bill. It has been challenged in two federal courts. The Amendment survived a challenge in the Court of Appeals for the District of Columbia and is awaiting a ruling on motions for summary judgment in the Northern District Court of California.

 

 

Protections for Military Healthcare Providers:

Federal law also provides for military healthcare providers. Pursuant to Department of Defense (DOD) and individual service directives, military healthcare providers may refuse to participate, directly or indirectly, in medical procedures that they find morally or religiously objectionable. As with other rights of religious accommodation, this right will be balanced against "military necessity" and the potential adverse affect on unit readiness, individual readiness, unit cohesion, morale, discipline, safety, or health. Any refusals to provide medical care based on religious objections should be disclosed in advance to the provider's chain of command and to patients as the need arises.

 

DOD Directive (DODD) 6000.14, Patient Bill of Rights and Responsibilities in the Military Health System, dated 30 July 1998, provides, in pertinent part, that:

  1. A provider who disagrees with a patient's wishes [as to treatment], as a matter of conscience, should arrange for transfer of care to another qualified provider willing to proceed according to the patient's wishes within the limits of the law and medical ethics.
  2. (2) Military treatment facilities and Tri-care [health insurance system for military dependents and retirees and their dependents] network providers and facilities shalldisclose to patients… matters of conscience . . . that could influence medical advice or treatment decisions.

While individual healthcare providers may refuse to participate in certain medical procedures, these procedures will still generally be provided by the military treatment facility (MTF) or an affiliated civilian facility or provider. Elective abortion is the only exception to this rule. Abortions are not performed in MTFs unless the mother's life is endangered by a continued pregnancy or the pregnancy results from rape or incest.

 

Military treatment facilities, both in the continental United States and at overseas locations, provide a range of contraceptive options to military members and their dependents, including sterilization. In April 2002, DOD issued a directive requiring that emergency contraception be carried at all MTFs and military pharmacies. However, this mandate was rescinded in May 2002 and individual hospitals, clinics, and/or pharmacies must now decide for themselves whether or not to carry the drug.

 

 

What Happened in 2007

 

Healthcare Rights of Conscience -- Generally:

In 2007, approximately 104 bills were considered in at least 36 states covering a wide range of right of conscience issues. Many of these included or focused on the hot button issue of pharmacists' rights of conscience.

 

What To Do in 2008

 

The debate over healthcare rights of conscience is growing and becoming more contentious. In particular, we expect to see more attempts to limit pharmacists' rights of conscience, in large part because the mainstream media will continue to assert that the pharmacists' rights of conscience are out of touch with mainstream American opinion, endanger the continued provision of health care, and are burdensome to patients, especially women. Moreover, controversial research (such as cloning and destructive embryo stem-cell research) and the ongoing debate over the end of life, stemming largely from Terri Schindler-Schiavo's tragic death, will make conscience protection increasingly important.

 

In response:

Endnotes

1 Edward R. Martin, Jr., former Director of the AUL Center for Rights of Conscience, and Maureen K. Bailey, of the Columbus School of Law at Catholic University, made contributions to this article.

2 For a compilation of these protections, see http://www.usccb.org/prolife/issues/abortion/fedlawsconsciencerghts.shtml (last visited, September 4, 2007).