HHS Refusal Clause Threatens Patient Conscience

Jen Heitel Yakush

The concept of conscience has been repeatedly manipulated, especially in the context of reproductive health and rights. While some have pointed to Catholic teaching to support the imposition of ever-more restrictive refusal clauses, they do not, reflect the Catholic position.

The proposed regulation released by
the Department of Health and Human Services seems not
to be at all about protecting religious freedom. Rather, it uses the
guise of religious freedom to create unreasonable barriers for women
and men to access sexual and reproductive health care. Women and men
should be able to access safe and legal sexual and reproductive health
services. We need to campaign for a standard of care that gives everybody,
without exception, access to the services and information they need.

Under the proposed rule, individuals
cannot be required to “perform or assist in the performance of any
part of a health services program or research activity funded by [HHS].”
This goes well beyond the concerns some have about the provision of
abortion, sterilization and contraception. The rule even allows practitioners
who object to medical procedures to refuse to refer patients elsewhere.
The proposed rule is so broadly written that it will not only excuse
health workers who refuse to dispense birth control pills, emergency
contraception and other forms of contraception, but may also be interpreted
so as to affect referrals and counseling on issues seemingly unrelated
to abortion—such as the provision of health-care services to gays
and lesbians or counseling to an HIV-positive patient.

The question remains: Are these new
regulations needed at all? Conscience clauses have gone through many
permutations since they first appeared after the Roe v Wade decision;
and there are currently three federal conscience clauses on the books.
While these clauses claim to protect health-care workers who refuse
to participate in certain health-care practices, they result in women’s
access to vital health-care services being threatened. The ability to
deny providing even counseling or referrals becomes an infringement
on the conscience of the patient by denying her the means to obtain
an abortion in a safe, convenient and timely manner. The expansion of
these clauses goes beyond protecting the religious and moral beliefs
of health-care providers; they act as a means to refuse treatments and
medications to all.

The concept of conscience has been
repeatedly manipulated, especially in the context of reproductive health
and rights. While some have pointed to Catholic teaching and the support
of the US Conference of Catholic Bishops and the Catholic Health Association
(the trade association of the Catholic health industry), to support
the imposition of ever-more restrictive refusal clauses, such as those
in the new HHS proposal, they do not, in fact, reflect the Catholic
position. Catholic teachings on conscience are much more nuanced than
is usually presented in legal and policy debates.

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Catholic teaching requires due deference
to the conscience of others in making decisions. Health-care providers
must not dismiss the conscience of the person seeking care. If conscience
truly is one’s “most secret core and his sanctuary [where] he is
alone with God, whose voice echoes in his depths,” as the Catholic
states, how can anyone, or any institution for that matter,
justify coercing someone into acting contrary to her or his conscience?

The goal of any reasonable conscience
clause must be to strike the right balance between the right of health-care
professionals to provide care that is in line with their moral and religious
beliefs and the right of patients to have access to the medical care
they need. Within the field of medical ethics, the accepted resolution
to a conflict of values is to allow the individual to act on his or
her own conscience and for the institution (the hospital, clinic or
pharmacy) to serve as the facilitator of all consciences. Additionally,
the individual, in this case a doctor, pharmacist or nurse, must not
dismiss the conscience of the person seeking the health service. One
does not need to deny a patient emergency contraception or abortion
in order to remain a good Catholic.

The result of the recent expansion
in refusal clauses is that women and men seeking sexual and reproductive
health-care services are routinely denied access to or have great difficulty
in receiving care. When the government, through regulation and support
of those who are willfully denying necessary medical treatment to individuals,
is party to such an expansion, it is negating the right to conscience
of the woman, or man, seeking care.

We strongly support the reasonable
accommodation of employees’ religious beliefs in the workplace, but
a woman, regardless of her religion, age, income, race or geographic
location must have access to the health-care services she needs, including
the full range of contraceptive options and information.

Behind this proposed regulation is
a claim that it will protect individuals who feel they are being denied
rights. However, in doing so, it goes too far and tramples the rights
of those who will be consequently denied medically appropriate treatment.
Current federal conscience clauses already provide more than enough
protection for those medical professionals who refuse to provide services
to which they object. There is no need to introduce any more such clauses.
In fact, we would do well to revisit the ones that are already on the
books to ensure that they do enough to recognize the rights of patients
needing medical care.

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