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 contraceptive 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
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. Backers of these policies seek to redefine all forms of contraceptive
technology as “abortion,” stigmatize reproductive and sexual health
services of all kinds, marginalize persons whose sexual identities or
livelihoods they deem offensive, and break the social contract between provider and patient. In doing so, they flout
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 and via application to whole institutions, 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
use vague and sweeping definitions of religion and morality to deny not only a specific service, but
also information and referrals, including in life-threatening
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Under current U.S. global AIDS law, for example, a group with a “moral
objection” to the notion of “safer sex,” to sex work, 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
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
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.