fbpx
Skip to content
Law Articles, News

Contemporary Threats To Healthcare Freedom of Conscience

Denise M. Burke

Over the last few decades, abortion advocates and others have launched a concerted campaign to force hospitals, healthcare institutions, health insurers, and individual healthcare providers to provide, refer for, or pay for elective abortions, abortifacient drugs, contraceptives, assisted reproductive procedures such as in vitro fertilization, and sterilizations. Their determined effort to eviscerate the concept of individual conscience and the freedom to follow one’s religious, moral or ethical beliefs from the medical profession has resulted in the following:

  • Catholic Charities in New York and California being forced by their state supreme courts to face the unenviable choice of offering healthcare coverage for contraceptives (even though the use of artificial contraception violates long-standing Catholic teachings) or, alternatively, to eliminate its prescription drug benefit for its employees (in contravention of Catholic Church teachings concerning the provision of just wages and benefits).
  • At the behest of the Governors of Illinois and Washington, pharmacy owners in those states have been directed to dispense emergency contraceptives regardless of moral, religious, or conscience objections.
  • New Mexico refusing to approve a community-owned hospital lease because of the hospital’s refusal to perform elective abortions.

Sadly, these examples represents only a small sampling of the mounting attacks on the rights of healthcare professionals to provide medical care without violating their consciences. 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 and their allies are attempting to turn the debate into a referendum on alleged “refusals” to provide women “access” to controversial reproductive procedures.

Notably, the most recent and pressing threat to freedom of conscience has come from within the healthcare profession itself. In November 2007, the Committee on Ethics of the American College of Obstetricians and Gynecologists (ACOG) issued a policy statement entitled “The Limits of Conscientious Refusal in Reproductive Medicine.”2 The controversial document provided that:

  1. Pro-life physicians must refer for abortion: “Physicians . . . have the duty to refer patients in a timely manner to other providers if they do not feel they can in conscience provide the standard reproductive service that patients request.”
  2. Pro-life physicians should relocate to refer patients to nearby abortionists: “Providers with moral or religious objections should . . . practice in proximity to individuals who do not share their views . . . “
  3. Patient autonomy trumps physician’s conscience: A physician may not exercise his or her right of conscience if that might “constitute an imposition of religious or moral beliefs on patients.”
  4. Conscience amounts only to a subjective feeling and not to a well-grounded moral or religious belief system or a well-established constitutional principle: “An appeal to conscience would express a sentiment such as ‘If I were to do ‘x,’ I could not live with myself, I would hate myself, I wouldn’t be able to sleep at night.”

By the end of the year, the American Board of Obstetrics and Gynecology (ABOG), which certifies obstetricians and gynecologists, joined the assault against physicians’ freedom of conscience. In issuing its 2008 Maintenance of Certification Bulletin,3 ABOG decreed that physicians may now lose their certification for “violat[ing] ABOG or ACOG rules and/or ethics principles . . . ” Thus, refusing to comply with ACOG’s policy regarding referrals for abortion would endanger a physician’s ability to maintain his or her certification which, in turn, would put the physician’s hospital or staff privileges and ability to practice and earn a living at risk.

Thankfully, this imminent and invidious threat to freedom of conscience was immediately denounced and challenged by physicians, members of the Bush Administration (including Secretary of Health and Human Services Michael Leavitt), the U.S. Conference of Catholic Bishops, pro-family policy groups, and legal organizations like Americans United for Life (AUL). These groups and individuals are seeking to have ACOG’s policy statement rescinded and to have ABOG expressly affirm that physicians’ certifications will not be dependant on their willingness to violate their consciences by referring patients for abortions or other controversial, elective procedures.

Historical Perspective on Freedom of Conscience

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.” Traditional western thought has understood that individual conscience is a guide for action and is indispensable to appropriate action.

Further, 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 many 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 pretest infringed. No state shall violate the equal rights of conscience of the freedom of the press, or the trial by jury in criminal cases.”

Thus, 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.

Legal Protections for Healthcare Freedom of Conscience:

Forty-seven states provide some degree of protection for healthcare rights of conscience. Two states, Illinois and Mississippi, have laws providing 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. Conversely, three states, Alabama, New Hampshire, and Vermont, provide no protection for conscience.

Federal law includes nineteen separate statutory protections for conscience rights.4 Congress first addressed the issue of conscience rights for healthcare providers just weeks after the U.S. Supreme Court 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 healthcare “entities” and individual providers who decline to participate in abortions.

The most recent federal conscience protection, the Hyde-Weldon Conscience Protection, provides that no federal, state, or local government agency or program that receives funds in the Labor/Health and Human Services appropriations bill may discriminate against a healthcare provider because the provider refuses to provide, pay for, provide coverage of, or refer for abortion. The Amendment is subject to annual renewal. Moreover, it has survived two separate legal challenges in federal court.

Informing the National Debate Over Freedom of Conscience:

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

  • Healthcare is not a commodity, it is service. Those in the field are not clerks or automatons, but serious professionals trained to provide specialized care. As professionals, they engage in decision-making that is informed by their intellects as well as their consciences. Thus, patients’ desires and choices do not and should not trump the conscience of healthcare providers.
  • Conscience is subjective but not relative, and is defined by the individual through his/her religious faith, morality, or ethics. Conscience is applied to all actions and decisions and cannot be ignored or compartmentalized.
  • Freedom of conscience is an American ideal. That is, conscience is the freedom from coercion (by the government or other individuals) to act against one’s will.
  • Conscience is a “check and balance” in a healthcare provider’s decision-making process. In the rapidly developing medical field, ethical challenges abound. We want our medical professionals to exercise ethical behavior (i.e., behavior in accord with their conscience).
  • The strategy being used by abortion supporters is clever and chilling. If they can create legal precedent to compel violation of conscience for one procedure (e.g., dispensing contraceptives) or group of healthcare providers (e.g., obstetricians and gynecologists), they will have established the legal precedent necessary to compel doctors to actively participate in surgical abortion and to compel all healthcare providers to participate in other objectionable procedures and services.
  • Opponents of rights of conscience argue that that only individuals can or should have (limited) rights of conscience. This is short-sighted and purposely misunderstands the notion that the mission of an organization or institution (such as a public or private hospital or a healthcare insurer) is informed by the individuals controlling that organization or institution.

Responding to Common Myths About Freedom of Conscience:

Further, it is also important that common myths and “scare tactics” used by those seeking to subvert or eliminate conscience are effectively countered. Here are the most common arguments proffered by abortion proponents and the facts that undercut those arguments:

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. Wade5 and affirmed in Planned Parenthood v. Casey6 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, contraceptives, or other procedures. They merely protect healthcare providers from acting contrary to their consciences by providing them a right to refrain from participating in those procedures.

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 a conscientious objection has been made. Conscientious objections are most often raised concerning elective services, such as abortion, contraception, sterilization, physician-assisted suicide, and the 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.

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.

Conclusion

The debate over healthcare rights of conscience is growing and becoming more contentious. In particular, we should 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 will make conscience protection increasingly important.


Endnotes

1. For more information on healthcare rights of conscience, go to http://www.aul.org/Rights_of_Conscience (last visited, May 13, 2008).

2. http://www.acog.org/from_home/publications/ethics/co385.pdf 

3. http://www.abog.org/pdf/MOC2008.pdf 

4. For a compilation of these protections, see www.usccb.org/prolife/issues/abortion/fedlawsconsciencerghts.shtml (last visited, May 13, 2008).

5. 410 U.S. 113 (1973).

6. 505 U.S. 803 (1992).