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Repealing HHS Conscience Protections

By Daniel Briggs
AUL Legal Fellow

I swear . . . to keep according to my ability and my judgment, the following Oath.


I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone.

I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion.


                                                                                 –Original Hippocratic Oath[1]

The Hippocratic Oath has changed since its creation in response to the pervasive influence of postmodernism and correlative moral relativism.  But while the oath may have changed, the consciences of many doctors and other medical professionals have not.  And though they are increasingly hard-pressed to abandon their consciences, they steadfastly refuse, most often with regard to elective services (i.e., abortion, contraception, sterilization, physician-assisted suicide, withdrawal of artificial nutrition and hydration, etc.).  Abortion advocates oppose protections for these objections, arguing that they will hinder a woman’s access to healthcare.  But this argument is unavailing; patients may simply find another medical provider who is willing to perform or provide the desired service.

On December 18, 2008, the Department of Health and Human Services (HHS) implemented federal regulations[2] with one objective in mind:

[T]o ensure that Department funds do not support morally coercive or discriminatory practices or policies in violation of federal law, pursuant to the Church Amendments (42 U.S.C. § 300a-7), Public Health Service (PHS) Act §245 (42 U.S.C. § 238n), and the Weldon Amendment (Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 508(d), 121 Stat. 1844, 2209).[3]

In other words, they provide support for medical professionals wishing to not perform abortions or fill prescriptions in violation of their religious or ethical beliefs.  Recipients of federal funds through HHS must certify their compliance with existing federal laws protecting healthcare providers from coercion, discrimination, or negative job consequences for refusing to participate in certain procedures including – but not exclusive to – abortion.

As a practical matter, these regulations simply underscore the constitutional rights of medical professionals.  But when abortion is the topic du jour, what is otherwise irrefutable becomes a matter of contention. 


President’s Legal Authority

The president cannot negate or rescind these regulations by fiat.  Instead, absent legislative or court intervention, he must navigate the same administrative process used to produce the rules in the first place. 


Impact of HHS Conscience Protections

The poor condition of America ’s healthcare system is self-evident, as demand overwhelms supply.  HHS conscience protections serve to keep healthcare providers and institutions within the system providing much-needed services.  If abortion advocates have their way and if these protections are removed, many healthcare providers forced to decide between conscience and career will choose the former.  And Americans will suffer as a result.  Also, the removal of these conscience protections will also deter fine young men and women from even entering the medical field.  And even more Americans will suffer as a result.    


Impact of Obama Administration’s Proposed Repeal of HHS Conscience Protections

Freedom of conscience simply guarantees American men and women the fundamental right to be free from coercion.  Protecting conscience ensures that providers enter and remain in the healthcare profession.  It follows, then, that this will help meet the rising demand for quality healthcare.  Conversely, failure to protect conscience will lead to dramatic losses in the provision of healthcare.  By supporting the repeal of the HHS conscience protections recently enacted, the Obama Administration has delivered a major blow to the provision of healthcare in America .  And Americans suffer as a result.

[1] “Greek Medicine,” National Institutes of Health – History of Medicine Division, available online at http://www.nlm.nih.gov/hmd/greek/greek_oath.html (last visited: 09 Feb 2009).

[2] 45 CFR Part 8, available online at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div5&view=text&node=45: (last visited: 05 Feb 2009).

[3] Id.