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Federal provider conscience regulation: unconscionable
  1. R Card
  1. Dr R Card, SUNY/University of Rochester Medical Center, 601 Elmwood Avenue, Box 676, Rochester, NY 14642, USA; robert_card{at}urmc.rochester.edu

Abstract

This paper argues that the provider conscience regulation recently put into place in the USA is misguided. The rule is too broad in the scope of protection it affords, and its conception of what constitutes assistance in the performance of an objectionable procedure reveals that it is unworkable in practice. Furthermore, the regulation wrongly treats refusal of other reproductive services as on a par with conscientious objection to participation in abortion. Finally, the rule allows providers to refuse even to discuss “objectionable” options with patients and serves to protect discriminatory refusals of medical care. For all of these reasons, this regulation is unwise.

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A federal regulation protecting medical providers who conscientiously refuse to perform certain actions was put into place in the USA in late 2008 by the Department of Health and Human Services (HHS). The presidential administration has recently called for consideration of whether this rule should be rescinded, in part or as a whole, which makes this a particularly appropriate time to examine this legislation. This rule proposed by the HHS in September 2008, was finalised in December 2008, and was to take effect in January 2009. The rule was put on hold pursuant to an Obama administration review, and the HHS has sought public comments on the legislation, including (eg) whether there is an appropriate need for federal rulemaking in this area and whether this rule unduly burdens patients’ access to information and healthcare. For further details, see CCH Aspen Publishers Technical Answer Group News and Information.1 This rule aims to offer federal protection to providers who object to performing abortions or sterilisations and would empower federal health officials to pull funding from healthcare entities if they do not certify in writing that they accommodate objecting providers. This policy builds from previous laws protecting conscientious objection to participation in abortion dating to the 1970s put in place after the US Supreme Court’s Roe decision.2 However, this regulation includes general language that would appear to protect a provider’s objection to any medical care on any moral grounds. The HHS rule states that healthcare entities shall not “…require any individual to perform or assist in the performance of any part of a health service program or research activity funded by the Department if such service or activity would be contrary to his religious beliefs or moral convictions….”3 This sweeping provision would protect providers such as (eg) pharmacists who object to filling valid prescriptions for birth control to unmarried women. The scope of this rule is indefensibly broad, and this constitutes its major shortcoming.

The regulation casts the net too widely regarding the level of involvement in a procedure required by an objector. The proposed policy explicitly allows that an employee whose job was to clean surgical instruments would be protected from sanctions if he objected to cleaning instruments used in a sterilisation procedure.4 The reason given is that this employee would be considered to “assist in the performance” of the procedure, yet this protection is either unnecessary or unworkable from a practical standpoint. If a person sanitised the surgical instruments after the procedure, this would not seem to be assistance because the job is already completed. If the person sanitised the instruments before the procedure, one would have to know that this scalpel was going to be used to (eg) perform a vasectomy as opposed to an appendectomy, which is unlikely. To accommodate such objectors, instruments would have to be designated for use in “objectionable” procedures and for use in “unobjectionable” procedures, so that objectors could avoid cleaning instruments to be used in the former. Alternatively, personnel could be designated to perform only certain cleaning jobs, but either way such a system quickly becomes unmanageable. Where do we draw the line regarding what constitutes “assistance”? If this is understood as broadly as it is in the HHS rule, then personnel can object to (or should be scheduled to avoid) disposing of medical waste resulting from certain procedures; this certainly counts as assistance under the rule because without such services the activities in a hospital would grind to a halt. Yet having to sort medical waste according to the type of procedure that gave rise to it—and then having multiple carriers dispose of it—reveals the overreaching nature of this rule.

The discussion thus far has actually simplified the reality of such an imagined system. This categorisation into “objectionable” and “unobjectionable” must vary depending upon the person who happens to be on shift to sterilise the equipment (or dispose of the waste), because it is reasonable to assume that not all objectors will agree on the morality of various medical operations in every instance. In addition, a surgeon might need to use an instrument to address an unforseen complication during an otherwise “unobjectionable” operation—perhaps during a C-section delivery the patient suffers a complication that requires an emergency hysterectomy. In this case, as this use was not planned, the person who sterilised that instrument did “assist in the performance of” a procedure that caused sterility and thereby would seem (to a relevant objector) to have had his or her moral or religious beliefs trampled upon. These points reveal that such a rule is either terribly inefficient (if such a categorisation scheme could ever be put in place) or is simply unworkable in practice.

The fact that this proposed rule extends protections for conscience objections unacceptably far can be seen if we specifically consider refusals to dispense emergency contraception. Some object to plan B emergency contraception because they believe that this drug is morally equivalent to abortion, yet while this ground for conscientious refusal is contentious,5 it seems that this regulation would protect those who object to dispensing emergency contraception.6 With regard to elective surgical abortions, at the time of lodging an objection it is reasonable for a medical practitioner to believe that his contribution would end the life of a human being, but this is not the case with regard to plan B. When a provider refuses to dispense plan B it cannot be known if the woman requesting the medication has been fertilised because these pills must be taken within 72 h of sexual contact—before a determination of fertilisation is possible.7 Therefore, it cannot be known whether something morally wrong would occur, even granting the objector’s belief that human life possesses full moral status at conception, because it cannot be known whether the early human life the professional objects to harming even exists. As the provider lacks relevant evidence for the foundation of his conscientious refusal regarding emergency contraception, this objection is much less compelling on its face than an objection to assisting in performing an abortion. Yet in this regulation, these two objections are wrongly considered to be on a par.

An even more alarming feature of this regulation is revealed in the following passage: “When applying the term ‘assist in the performance’ to members of an entity’s workforce, the Department propose[s] that the term be limited to participation in any activity with a reasonable connection to the objectionable procedure, including referrals, training, and other arrangements for the procedure.”4 This rule explicitly allows objecting medical providers to refuse to refer patients to another willing provider. This feature does not simply respect the practitioner’s conscience, but allows the professional to obstruct the patient from being cared for by another provider. (This is perhaps clearest when a primary care physician refuses on moral grounds to refer a patient to a specialist.) Also, given that an objector can avoid “participation in any activity with a reasonable connection to the objectionable procedure”, this would allow providers to refuse to discuss “objectionable” medical options with patients if they reasonably believed this would lead the patient to seek out this very option with a willing provider. This would deprive patients of informed consent—one of the cornerstones of medical ethics. This puts patients in the awkward position of either feeling judged if their provider objects to their request, or of having to second-guess their physician’s advice because patients will not know if a relevant treatment was omitted from the discussion due to the practitioner’s moral beliefs.

Finally, such a policy serves to cloak discriminatory motives. While the HHS claims that their purpose is to prevent discriminatory treatment of objecting providers,8 the protections put in place by this rule themselves may serve to discriminate against women by masking sexist motives. The healthcare services focused upon in the regulation fall within the reproductive arena, yet by being refused the means of gaining control over their reproductive lives women are deprived of the attendant benefits. In the majority opinion in Planned Parenthood of Southeastern Pennsylvania v Casey, Justices O’Connor, Kennedy and Souter reflect upon the decision in Roe and state that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”9 Would there truly be refusals that constitute discrimination? While courts have largely stayed out of this controversy to date, we can gain some insight from a recent case in which the California Supreme Court held that physicians who conscientiously objected to assisting a lesbian medically to become pregnant were not justified in withholding such reproductive care despite their religious freedoms.10

Whereas the background details of the North Coast Women’s Care case are somewhat complex, essentially the physicians involved had religious-based objections to performing a specific procedure (assisting in the conception of children by artificial insemination) on a general class of patients (homosexuals). This helpful statement of the background facts and issue at stake is derived from Appel.11 The court ruled against the physicians by determining that their behaviour constituted discrimination based on sexual orientation. This holding is relevant to our discussion because this case links refusal of medical treatment to discrimination, and protection from discrimination on the basis of sex (gender) stems from Title VII of the Civil Rights Act of 1964. Given that federal legislation condemns discrimination on the basis of sex and sexual orientation is determined by the gender of one’s partner, it seems that a physician who denies reproductive services to a same-sex couple can plausibly be said to have violated the tenet not to discriminate based on sex; this is true (as it was in North Coast) if the refusal to care for the couple would not have occurred if the couple had instead consisted of one man and one woman. Considerations such as these may even lead one to wonder why a conscientious refusal of emergency contraception does not (at least on its face) constitute discrimination based on sex. In any case, as this rule does not require that objecting providers state any justification for their refusal, it seems that this federal regulation would protect the conscientiously objecting physicians in the North Coast case as well as pharmacists who refuse to fill birth control scrips because they believe women should be pregnant as often as men wish them to be. Any such rule that serves to protect discriminatory refusals of medical care constitutes an unconscionable piece of legislation.

REFERENCES

Footnotes

  • Competing interests: None.

  • Provenance and peer review: Not commissioned; externally peer reviewed.

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