01/26/2009 03:29 pm ET Updated Nov 17, 2011

What Are They Thinking??

New HHS "Conscience" Rule is Prescription for Health Care Chaos

As part of its far-reaching social agenda, the Bush Administration instituted a health care regulation so sweeping and vast, its potential to wreak havoc seems, to me, unlimited. Popular press tells this story as one about abortion, but that's just where the tale begins.

Clever anti-choice operatives dressed up a malicious rule as an "anti-discrimination," measure. In actuality it promotes discrimination against those in need of care. It enables the self-righteous to hold patients and whole health care systems hostage to their personal, idiosyncratic beliefs. The "conscience" rule, went into effect January 19th, 2009, and as such is not subject to the Obama Administration's suspension of pending rules.

The most dangerous section, 88.4 d 2, bars health care institutions and employers from requiring "...any individual to perform or assist in the performance of any part of a health service program..." if it would offend his/her religious beliefs or moral convictions. The next line stops employers from taking a person's refusal to "perform or assist" into account in decisions about employment, promotion, termination, or the extension of staff privileges. The rule covers anyone refusing to do their job for reasons of religious belief or moral conviction --- physicians, nurses, pharmacists, technicians --- apparently even cleaning and maintenance staff.

The rule makes no exception for refusals that endanger the patient, and imposes no duty to give the employer or patient ample notice of a pending refusal. The refusers are not even required to make sure "non-refusing" staff are ready to cover for them during a crucial treatment or procedure. Apparently that's someone else's job.

So let's get this straight. Anyone, anywhere, anytime, can claim an authentic, deeply held moral objection to any health care treatment, procedure or prescription and opt out, on the spot, leaving a patient high and dry. And there's not a thing the employer can do about it, because the Feds say so.

How is this not a prescription for chaos?

The righteous people at the Bush HHS spotlighted abortion, sterilization and contraception in this rule. But their rule certainly doesn't stop there. We have already written about the disastrous impact this rule is likely to have on end-of-life pain care, and especially the urgent intervention against suffering called terminal sedation. The rule exaggerates an already significant problem of under-treated pain by empowering health care personnel, including those at the bedside, who have personal moral or religious beliefs opposing aggressive pain care, regardless of the patient's agony.

This rule could have a dramatic effect on all patients. How far could this go?

Jehovah's Witnesses, one group with deeply held religious convictions, believe the transfer of blood and blood products is sinful. I don't think these good people have ever sought to impose their beliefs on others, or grind health care to a halt to accommodate their beliefs. But this rule certainly gives them license to do that if they wish. "Sorry," the Jehovah's Witness nurse, technician or aide could say to a trauma patient bleeding to death in the emergency room. "I can't help, even to carry the blood to the bedside. Find somebody else to go get it, or set up the IV to deliver it, or confirm it's the correct blood type." This sweeping rule even prohibits a blood bank from declining to hire a Jehovah's Witness in the first place, even if their convictions would bar them from performing any actual work at the blood bank.

Another religious denomination with strong health care convictions are Christian Scientists, who adhere to Mary Baker Eddy's science of Christian healing and reject techniques of medical care. A Christian Science nurse, technician or other hospital worker could refuse to participate in any aspect of their job description, with full protection from the federal government.

This is just the beginning --- just a few moral convictions enshrined in established religious denominations. What about the myriad of personal, idiosyncratic beliefs and convictions people usually keep to themselves? This federal rule might coax these private convictions into overt demonstration, given that we can't discriminate against the person who refuses to do their job because of them.

Think of people declining to participate in any procedure or treatment that was tested on animals. Think of people who object, accurately or not, that a treatment arose from stem cell research. Think of anything a person could object to, then think how the objecting person could sabotage health care, put patients at risk and leave personnel policies in taters by exercising their new found "anti-discrimination" right.

Finally, there's administration's absurd estimate of the cost of its rule on our already strained system. The estimate includes one person's time (they think 30 minutes will be plenty) to read the paperwork and certify that the institution complies. Nothing more. They conclude that this modest cost will be MORE than made up by the fantastic opportunities in health care for all the people who might have previously thought health care was not the career for them, because their deeply held convictions would bar them from actually delivering services. They were so wrong! According to this crazed policy, they should all apply for employment at their local health care institution, and finally get the world to conform to their convictions! At last they will really matter!

Unfortunately, patients are the unwitting victims in the service of sanctimony.