Unconscionable Policies, Dangerous Politics

01/18/2009 05:12 am ET | Updated May 25, 2011
  • Jodi Jacobson Editor-in-Chief/RH RealityCheck, expert on women's health and rights.

Today -- in a last gasp action of the Bush Administration -- the Department of Health and Human Services (HHS) published regulations dramatically expanding the right of health care workers to refuse to provide services, information and referrals to patients seeking procedures, prescriptions or other forms of care deemed by the provider as "objectionable." Through ambiguous language, the regulations could deeply undermine long-established principles of medical ethics and responsibility by, for example, allowing providers to conflate widely used contraceptives devices, such as birth control pills and intra-uterine devices, with abortion. Even by individuals and institutions receiving federal funding to provide medical care.

Last spring, Congress reauthorized the U.S. Global AIDS Act, with a budget of $50 billion through 2013. The act included an expanded "conscience clause" that allows organizations with "moral or religious" objections to opt out of engaging in evidence-based approaches to HIV prevention, treatment and care, and ostensibly to refuse treatment and care to those whose "lifestyles" or life choices they might find offensive. Even by those organizations receiving tens or hundreds of millions of U.S. taxpayer dollars to end the global AIDS epidemic.

These laws have more in common than simply the semantics of the terms "conscience" or "refusal" clause. Instead, they are part of an ongoing, insidious and unfortunately increasingly successful effort to privilege one form of religious "morality" and belief above all others in a pluralistic society by redefining all forms of contraceptive technology as "abortion," stigmatizing reproductive and sexual health services of all kinds, marginalizing persons whose sexual identities or livelihoods are deemed "offensive" according to one set of "morals," breaking the social contract between provider and patient, and flouting basic principles of medicine and public health by citing "conscience" as justification for denying medical care, not just through individual action, but in the use of federal funding, as a societal ethic. It is one thing for private practitioners to decide not to offer certain kinds of services. It is another altogether to use your tax dollars to impose religious principals that deny not only a specific service, but also refuse information and referrals, including in life-threatening circumstances.

Under current U.S. global AIDS law, for example, a group with a "moral objection" to the notion of "safer sex," to women engaged in sex work for livelihoods, or to the sexual identities of men who have sex with men, can deny accurate information on effective prevention or block access to treatment or care by simply citing "conscience," all the while getting funded by the U.S. government to end the HIV/AIDS epidemic.

These tactics go beyond what most people think of as "conscientious objection." According to the American Civil Liberties Union (ACLU), the HHS rule would allow "health care individuals and entities to refuse to provide health care services for any reason whatsoever, including reasons based on economics or discriminatory motives."

Moreover, these laws also have in common the groups that push for them. The United States Conference of Catholic Bishops (USCCB) and the Family Research Council (FRC) lobbied strenuously for the HHS regulations. Saddleback Church joined USCCB, FRC and others to push for restrictions on prevention programs and expand the "conscience" clause in the US global AIDS Act. Not surprisingly, these groups also lobby for tax dollars to support their programs here and abroad.

Conscientious objection has deep roots in social action and human rights advocacy and, with respect to medical practice has long been protected through various federal laws, such as the Church and Weldon Amendments, and by statutes in at least 46 states. In addition, virtually all medical associations have extensive and detailed standards of ethics and conscience clauses.

Existing rules and regulations seek to balance a physician's conscientious objection to performing, for example, an abortion with the profession's obligations to afford all patients nondiscriminatory access. These principles are recognized even by some religiously affiliated medical entities that acknowledge their own objections to providing certain kinds of care but recognize simultaneously their own responsibilities in referring patients to access care they may need or want.

Such ethical codes and standards recognize the inherent need to balance the rights of the individual provider against the rights of the individual patient and the social interest in promoting public health and evidenced-based medical care. As bioethicist Nancy Berlinger of the Hastings Center states:

Conscientious objection in health care always affects someone else's health or access to care because the refusal interrupts the delivery of health services. Therefore, conscientious objection in health care always has a social dimension and cannot be framed solely as an issue of individual rights or beliefs.

Public support for maintaining this balance is profoundly clear, as underscored by the results of a 2001 ACLU survey on this issue, which concluded:

This qualitative and quantitative research shows that Americans overwhelmingly oppose laws that protect religious objectors at the expense of the patient's rights and the public health.

The public opposes refusal clauses that threaten access to health care.

89% oppose "allowing insurance companies to refuse to pay for medical services they object to on religious grounds."

88% oppose "allowing pharmacies to refuse to fill prescriptions they object to on religious grounds."

86% oppose "allowing employers to refuse to provide their employees with health insurance coverage for medical services the employer objects to on religious grounds."


76% oppose "allowing [hospitals] to refuse to provide medical services they object to on religious grounds."

By changing the terms of "conscience," the social contract balancing providers' and patients' rights is broken, in part because these actions come without a price to the so-called objector. In a 2005 article, bioethicist Alta Charo quotes Mahatma Gandhi and Martin Luther King, Jr. in stating that:

"in matters of conscience, the law of majority has no place," [but] acts of conscience are usually accompanied by a willingness to pay some price. Martin Luther King, Jr. argued, "An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law."

But, as she points out, quoting Boston Globe columnist Ellen Goodman:

What differentiates the latest round of battles of conscience clauses from those fought by Gandhi and King is the claim of entitlement to "conscience without consequence."

The consequences are however crystal clear and are felt by the person denied information, service or care. Medical and public health professionals and the public writ large have found consensus around services, information, and methods of medical care that should be widely available. When individuals or groups are denied access, the consequences are immediate and the harms directly proportional to the level of economic and social disparity that limits access by individuals to the care they want and need. Those harms are found abundantly in high rates of unintended pregnancies due to lack of access to contraception among economically and socially disadvantaged teens, and high rates of HIV infection among women, especially African-American women in the United States and women generally in countries throughout Africa and Asia.

In the end, the actions by a few to rewrite the laws of conscience and society are not just about a single law or policy, but a collective effort to undermine a social contract on which much of our healthcare is based. As numerous analysts have pointed out, there are ample opportunities for the Obama Administration -- through Executive and Congressional action--to get rid of these specific and onerous regulations. But to declare success and stop there will be to win the battle and lose the war. These fights are as much about culture and definition, about civil society action, vigilance and accountability on an ongoing basis as they are about the law. And this particular fight may well become increasingly pitched as we move toward health care reform in the United States.

We have to recognize that legal and policy challenges are critical but they are not enough. Those who believe in balancing provider's rights with patients needs and rights must be forceful and proactive in putting the door back on its hinges, and that will take require proactive conversation and mobilization, starting now.