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Healthcare Rights of Conscience: A Hotbed of Legislative, Executive, and Judicial Action in 2008

Most state legislative sessions have ended for 2008, and the results in the area of rights of conscience are fairly depressing.  A disturbing 60 percent of all conscience-related bills considered this year were compulsion bills.  In other words, these were not bills aimed at protecting the conscientious and moral beliefs of healthcare providers; instead, these were bills aimed at forcing pharmacists and other healthcare providers to provide drugs and treatments contrary to their moral beliefs.

Clearly, abortion advocates are not pulling any punches when it comes to advancing their ultimate agenda: forcing all healthcare providers to choose between providing abortion-on-demand and any other morally problematic procedures or drugs, or leaving the profession.  And for a nation already facing a healthcare crisis caused by an insufficient number of healthcare providers to account for our ever-growing demand, that is a dangerous ultimatum.

This ultimatum—compromise your beliefs or get another job—cannot be dismissed as mere “rhetoric” put forth by those in the pro-life community.  It is more of a battle cry that is growing not only in the pro-abortion movement, but even among certain medical groups.  Several months ago, the American College of Obstetricians and Gynecologists (ACOG) issued an ethics opinion that completely disregarded the fact that physicians have conscience rights guaranteed under federal law.  The American Board of Obstetrics and Gynecology (ABOG) subsequently issued a statement basically adopting ACOG’s position, and potentially forcing physicians to either violate their conscience by referring for abortions, or risk losing their board certification.

Fortunately, these actions did not go unnoticed by the U.S. Department of Health and Human Services (HHS).  In August, HHS Secretary Mike Leavitt announced a proposed regulation that would increase awareness of, and compliance with, three separate federal laws that protect the rights of conscience of federally funded healthcare providers.  These federal laws include the Church Amendments, which protect healthcare providers from discrimination by recipients of HHS funds on the basis of their refusal to perform or participate in any lawful health service or research activity; section 245 of the Public Service Health Act, which prohibits federal and local governments from discriminating against individuals and institutions who refuse to receive training in or perform abortions; and the Hyde-Weldon Amendment, which prohibits the provision of HHS funds to any federal, state, or local government agency or program that discriminates against individuals or institutions for failing to provide or pay for abortion.

Again, these are federal laws that are already in place.  HHS issued the proposed regulation because individuals and entities like ACOG and ABOG seem completely unaware of—or potentially utterly dismissive of—these federally-guaranteed conscience rights.  The proposed regulation will increase awareness of and compliance with these federal laws by, among other things, requiring recipients of HHS funds to certify compliance with the laws; designating an office to receive complaints of discrimination; and charging HHS officials with ensuring that the federal rules are followed.  The goal: ensuring that the public and members of the medical community understand that healthcare providers do not have to compromise their beliefs in pursuing their profession.

As Secretary Leavitt stated, “This proposed regulation is about the legal right of a health care professional to practice according to their conscience…. Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience.  Freedom of expression and action should not be surrendered upon the issuance of a health care degree.”

Unfortunately, the Supreme Court of California doesn’t appear to agree, and in August issued an opinion in demonstrating the dire need not only for compliance with federal law, but also the enactment of solid conscience protections at the state level.  The case, North Coast Women’s Care Medical Group v. Benitez, was brought by a lesbian woman who claimed that two physicians at North Coast refused to provide a certain nonessential, artificial insemination treatment because of her sexual orientation.  Truth be told—and the physicians tell it well in this case—the physicians told the women at the forefront of her medical care that, based upon their moral and religious beliefs, they could not provide that insemination process to any single woman, regardless of her sexual orientation.

Ms. Benitez sued.  In her legal arguments, Ms. Benitez actually compared physicians and medical facilities to skating rinks and barber shops.  Basically, her line of reasoning goes something like this: if a skating rink or barber shop opens, the owner can’t discriminate against the patrons who enter the facilities.  Likewise, physicians can’t “discriminate” against patients who show up in their offices demanding nonessential treatments—no matter how morally problematic those nonessential treatments may be.  Using terms such as “for-profit medical practice,” “business establishment,” “marketplace,” and “commercial opportunity,” Ms. Benitez denigrates the noble practice of medicine to a mere business transaction.

And again, the battle cry was the same: provide whatever nonessential and morally problematic treatment I demand, or get out of the business.  Only this time, Ms. Beneitez couched her battle cry in terms of “accommodation.”  Physicians can be “accommodated” in their beliefs by choosing a different line of work—medical or otherwise.  Few would argue that this could ever qualify as a rational “accommodation.”  Instead, it is just a re-packaged version of the “compromise or get out” ultimatum.  And of course, Ms. Benitez failed to acknowledge that physicians have free exercise rights guaranteed by the federal Constitution.  In other words, it was Ms. Benitez that demonstrated complete intolerance for the lifestyle decisions of her physicians.

And the California Supreme Court bought it—hook, line, and sinker.  The Court adopted her extreme position that, once entering the profession, physicians must treat every patient that comes in their door with any nonessential treatment that patient demands—regardless of moral or religious beliefs.  This holding leaves no room for good faith medical judgment or a check on demanding patients, leaving physicians at the whim of patients who could claim discrimination in just about any conceivable scenario.  No room is left for a balancing of physician and patient rights.  Patient “rights” trump, no matter what: Patient “rights” trump physician rights.  Patient “rights” trump moral beliefs.  Patient “rights” trump the guarantee of free exercise under the federal Constitution.

But as HHS Assistant Secretary of Health, Admiral Joxel Garcia, M.D., stated, “[H]ealth care providers shouldn’t have to check their conscience at the hospital door.”  The current federal administration “gets it.”  The conscience rights of physicians and other healthcare workers must be protected.  Now is the time for states to enact laws protecting the conscience of all healthcare providers in all healthcare settings—and especially in the setting of nonessential medical treatment—before another state court fails to “get it.”  And public health in this nation suffers for it.

Mailee R. Smith, Staff Counsel, Americans United for Life [1]