Freedom of conscience is a core American principle. It is a principle that a strong majority of Americans believe is important to apply to the health care profession. While attacks against health care providers’ conscience rights are on the rise, several pieces of federal legislation – including H.R. 3, the No Taxpayer Funding for Abortion Act (which will be debated and voted on by the House of Representatives this week) – seek to ensure that the basic civil right to provide care, without violating one’s conscience, is protected.
According to poll results released today, for 77% of American adults it is either “very” or “somewhat” important to them “that healthcare professionals in the U.S. are not forced to participate in procedures or practices to which they have moral objections.”
Freedom of conscience is more than a popular goal, or an American ideal; it has a profound practical impact.
Protecting conscience rights of health care providers ensures access to critical health care. In a survey conducted in 2008, 91% of faith-based physicians agreed with the statement, “I would rather stop practicing medicine altogether than be forced to violate my conscience.” Forcing health care professionals to choose between their consciences and their careers will only exacerbate the current health care provider shortage.
And pressure to violate one’s conscience or leave the medical profession is not theoretical.
One recent threat comes from the American College of Obstetrics and Gynecology (ACOG), which in November 2010 reviewed and reaffirmed the 2007 Ethics Committee Number 385, titled “The Limits of Conscientious Refusal in Reproductive Medicine.” The effect of the ACOG committee opinion is that otherwise qualified health care providers specializing in obstetrics and gynecology may lose their board certification solely because of their pro-life values.
Another example of coercion includes Nurse Cathy DeCarlo, who was forced to participate in a late-term abortion at Mt. Sinai hospital in New York, against her known conscience objection. A federal court has dismissed her claim, saying federal law does not allow her to bring her own suit, but that – under federal regulations – the Department of Health and Human Services (HHS) can pursue her case.
In April, an Illinois court struck down a coercive law aimed at pharmacists and pharmacies in the case Morr-Fitz, Inc. v. Blagojevich. However, the plaintiffs were dragged through six years of litigation, and the Illinois Attorney General has stated she may appeal the decision.
The Patient Protection and Affordable Care Act (the federal health care reform law of 2010) also poses threats to the conscience rights of health care providers. The new law subjects conscience rights to “emergency” state and federal laws. Abortion-advocacy groups are lobbying to reinterpret emergency laws to coerce participation in abortion. For example, American Civil Liberties Union (ACLU) has asked the Centers for Medicaid and Medicare Services to construe the Emergency Medical Treatment and Active Labor Act (EMTALA) to force health care providers to perform abortions.
Four bills that have been introduced in the current Congress provide conscience protections for health care providers: H.R 3 – the No Taxpayer Funding for Abortion Act, H.R. 358 – the Protect Life Act, H.R. 1179 – the Respect for Rights of Conscience Act, and H.R. 361/S. 165 – the Abortion Non-Discrimination Act.
This week, the first of those bills, H.R. 3, will be debated and voted on by the House of Representatives. H.R. 3 prohibits discrimination by federal agencies and programs and any state or local government that receives federal funding against an individual or institutional health care entity that is unwilling to provide, pay for, provide coverage of, or refer for abortions.
Importantly, H.R. 3 contains a private right of action for health care providers whose conscience rights have been violated or threatened. The case of Nurse DeCarlo and the recent weakening of federal regulations designed to protect conscience rights underscores the necessity for Congressional action in this regard; health care providers should not be dependent on the Administration to pursue their case. An effective means to enforce their rights must be written in the law.
Americans United for Life also offers model legislation to comprehensively protect health care conscience rights at the state level.
 See Freedom2Care.org, May 2011: National poll shows majority support health care conscience rights in law, http://www.freedom2care.org/learn/page/polls-may-2011 (last visited May 3, 2011). Only 16% said it is not important.
 See Freedome2Care.org, Two National Polls Reveal Broad Support for Conscience Rights in Health Care, http://freedom2care.org/learn/page/polls-april-2009 (last visited May 3, 2011).
 See Press Release, American Civil Liberties Union, ACLU Asks Government to Ensure that Religiously Affiliated Hospitals Provide Emergency Reproductive Health Services (July 1, 2010), http://www.aclu.org/reproductive-freedom/aclu-asks-government-ensure-religiously-affiliated-hospitals-provide-emergency- (last visited Apr. 13, 2011). See also Letter from Laura Murphy et al., Director, Washington Office, Am. Civ. Liberties Union, to Marilyn Tavenner, Acting Administrator and Chief Operating Officer, Centers for Medicare & Medicaid Servs. (July, 1 2010), available at http://www.aclu.org/files/assets/Letter_to_CMS_Final_PDF.pdf (last visited Apr. 13, 2011).