`Right of conscience’ reg advances
December 16, 2008, 9:31 pm
Posted by Paul Moses
The Bush administration’s proposal to expand health workers’ right to avoid participating in performing abortions advanced this week, according to ProPublica.org (a non-profit investigative reporting site that deserves to be checked regularly).
While the article has some of the buzzwords we journalists use to get a certain point across (“a controversial midnight regulation”), it gives an evenhanded account of what is, well, a controversial midnight regulation.
Now if the Bush administration would only expand its respect for conscience into other areas … for example, the hundreds of soldiers who have said conscience forbids them from serving in the war in Iraq.
It seems to me this regulation would allow an employee who felt that NFP was an objectionable method of birth control to refuse to discuss it with clients in a Catholic clinic or hospital. And if the clinic or hospital tried to require the person to teach NFP, it could lose federal funding. It also seems it would allow a pharmacist to refuse to sell birth-control pills to a woman taking them for endometriosis for noncontraceptive purposes. Further, I presume that if the pharmacist had no problem filling a prescription for the pill for the woman with endometriosis, the cashier could refuse to ring it up. It would mean that areas that were served by only one pharmacy or clinic could only get the care the local pharmacist or doctor considered moral. Some have pointed out that employees could also refuse to do tasks they simply didn’t like by claiming they violated their consciences. The regulation simply goes too far.
Which specific provisions in the regulation do you think require each of these things? It is difficult to assess the suggestions without a page and line number, and an explanation of why you interpret them as applying in those ways.
Also, I don’t know the operative definition of a “controversial midnight regulation,” but ithe phrase seems to suggest the passage of something in a time and manner that is out of the public view, so it gets passed before people know what is going on. This regulation underwent an extensive public notice and comment period in which hundreds of thousands of suggestions were offered, and it has been openly debated in the media and in government since July.
This regulation goes too far if ProPublica’s item is accurate. A housekeeping aide could rely on this regulation to refuse to clean and disinfect an operating room?????
Overkill (and I’m not talking abortion here).
It’s one thing to refuse to perform the procedure (abortion, for example) or to dispense a birth control drug/device. This refusal could be defended.
But to refuse to clean an operating area or ring up a cash register?
Over the top!
Matt,
I am not a lawyer, so I am not reading the regulation and trying to apply it myself (although I have read pertinent parts, like the definitions of “assist in the performance. I am commenting based on objections raised by organizations such as the American Hospital Association, which is one of many organizations making the following point:
The main objection to the regulation is that, while it claims to be enforcing existing law, it broadens the definitions of who is covered and what kinds of activities may be objected to, is weighted totally toward the “conscientious objector” with no consideration of the patient, and requires all covered entities to report on compliance (a new administrative burden).
As for calling it a “controversial midnight regulation,” it is definitely controversial, and even some people who support it raise the question of why, if this kind of protection was needed, it comes at the end of the Bush administration instead of at the beginning. I know this kind of last-minute push to shove through thousands of pages of regulations has been done by both Republicans and Democrats, but I think it is an abuse of the system and should be stopped.
It will try to track it down later, but I was reading from a Catholic source on the morality of selling contraceptives in a drugstore. The gist of it was that it is never acceptable to sell contraceptives, but that neither the pharmacist who fills the prescription nor the cashier who rings up the purchase is selling contraceptives, because the contraceptives are not theirs to sell. They are doing their jobs. The article put the burden on the owner of the pharmacy, who is the one who would actually be selling.
DavidN: Thank you. I do think we need to get specific when allegations are made about what regulations would do and whether that is beyond the law or not.
You expressed on another thread that you thought ACOG’s compulsory abortion participation proposal for doctors was “not so bad.” That is consistent with your statement here that the HHS conscience protection rule goes “too far.” I don’t think your ideas about conscience protection can be reconciled with basic pro-life Catholic principles, or for that matter with the Hippocratic Oath.
I think one negative effect of our consumerist culture is that we look at professionals as mechanics and dispensers. There is a deeper meaning to the concept of a professional: they can and must insert morality and ethics into their practice. Opposition to these conscience protection rules not only demand the medical field to “give me abortion and give it to me now”–they also erode the notion of doctors as professionals who can and should make their own moral judgments in their practice. It is insufficient to respond, as some groups do, that child-killing is objectively an ethical good, because it isn’t, because the opposite was true up until 50 years ago, and because each professional should get to make that call to the degree of his own comfortability of participation.
Referral for abortion is participation, just as it would be to say “I am not a hitman but here’s the business card for one down the street.” And the other things in your AHA quote do “assist in the performance,” so I don’t see how this is going beyond what Congress intended when it enacted broad conscience regulations that don’t just prevent conscientious objection to a narrow scope of direct proximate cooperation.
The underlying objection by the objecting groups seems to be that Congress’ laws are wrong and should not be enforced. As the Wall Street Journal reports, Obama’s team agrees with them and is happily going to nullify this reg and revert back to the system in which pro-life providers can be forced to participate in killing:
“In transition offices across town, officials in the incoming Obama administration have begun considering how and when to undo” the HHS conscience protection.
http://online.wsj.com/article/SB122947155578512197.html
“On abortion and related matters, action is expected early on executive, regulatory, budgetary and legislative fronts.” (emphasis added)
The article has much more detail on the way Obama’s team will immediately begin expanding abortion in ways besides reversing the conscience protection.
sorry, “that don’t just prevent conscientious objection” should be “that don’t just limit conscientious objection “
You expressed on another thread that you thought ACOG’s compulsory abortion participation proposal for doctors was “not so bad.” That is consistent with your statement here that the HHS conscience protection rule goes “too far.”
Matt,
Let’s be clear on what I said was “not so bad:
I do not read that as “compulsory abortion participation,” although I do see that there are some (limited) problems over the matter of referrals. I would note that hiring hit men is not a constitutionally protected right in the United States.
There is a deeper meaning to the concept of a professional: they can and must insert morality and ethics into their practice.
Yes, but whose morality and ethics? As I have mentioned any number of times, in Judaism, there are times when abortion (to save the life of the mother) is not merely permitted, it is arguably mandatory. What about a poor Jewish woman who goes to an inner city clinic or lives in a rural area where there is only one hospital, who has a problem pregnancy that endangers her life, and who winds up seeing a doctor who will not bring up the subject of abortion, let alone refer the woman to another doctor? The problem with the proposed regulation is it gives all the rights to the provider and none to the patient.
I don’t see how this is going beyond what Congress intended when it enacted broad conscience regulations that don’t just prevent conscientious objection to a narrow scope of direct proximate cooperation.
The regulation itself says it intends to interpret “assist in the performance” broadly, and by doing so (and also by expanding the types of workers covered by the regulation) is not in accord with the body of law that has arisen from interpretations and court cases over the past several decades that sought to balance the rights of health care workers, employers, and patients.
The underlying objection by the objecting groups seems to be that Congress’ laws are wrong and should not be enforced.
The objection is that the laws passed by congress are being enforced, and that this regulation now overlaps with the enforcement of those laws, which is the duty of the EEOC, which is why “three officials from the Equal Employment Opportunity Commission, including its legal counsel, whom President Bush appointed, said the proposal would overturn 40 years of civil rights law prohibiting job discrimination based on religion.”
I can’t remember whether I raised this matter here, but I read a news item about a Muslim cashier in a grocery store who refused to scan a frozen pepperoni pizza because it contained pork, and Muslims are not allowed to handle pork. It does seem to me that if your religion or your conscience prohibits you from doing certain things that others consider normal and ordinary, at some point the burden falls to you to find employment that you are suited to instead of asking the government to pass laws requiring employers to accommodate you. I am not suggesting that people who don’t want to perform abortions should get out of the practice of medicine. I am suggesting that there has to be some accommodation of both the rights of health care providers and patients. I don’t think anyone who does not want to perform an abortion should ever be forced to perform one. But I don’t think any patient should ever be put in a situation where he or she will be kept in the dark about drugs or medical procedures by one doctor and not another. It just seems outrageous to me that anyone believes the practice of medicine should be set up in such a way that what you know about your treatment options should be matter of what doctor happens to be on duty at the moment.
David
Other than the first of the ACOG statements – that a physician should inform the patient of his or her beliefs – their position is “so bad.”
- Refer patients in a timely manner to another doctor who can provide the requested service.
“I can’t perform an abortion, but I can help you get one from someone else.”
- Provide medically indicated services in an emergency when referral is impossible or might affect a patient’s physical or emotional health.
What the heck do they mean by “medically indicated services” – abortion – so “I can’t perfom an abortion except in an emergency.”
- Practice close to physicians who will provide legal services or ensure that referral processes are in place so that patient access is not impeded.
“I can’t perform an abortion, and if I won’t I better set up practice next to an abortion clinic.”
You say, “I am not suggesting that people who don’t want to perform abortions should get out of the practice of medicine,” but that’s exactly what the pro-abortion lobby including many physicians, want – indeed I believe such a position has been proposed by members of the AMA and ACOG.
As for the idea that people won’t know their options, two points. Doctors always make decisions about what to tell patients and what not to tell them, and what advice you get is often a result of preferences for types of treatment. Usually, it’s not based on moral principles, but the idea that physicians don’t otherwise “withhold” options for treatment is the stuff of fantasy. Second, exactly on which planet or with which family of wolves would a woman have to have been raised to not know abortion is an option? Moreover, there is nothing in the regulation that would prevent a hospital from requiring a physician to tell a patient, “I do not perform abortions based on my religious convictions and cannot discuss that option or refer you to a provider who does, you must seek another provider if you wish to discuss an abortion.”
Finally, the timing of these regulations seems to have been based on the fact that ACOG and another board had issued ethical and professional strandards that raised the issue in late 2007 and earlier this year – not some sinister Bush administartion plot.
“The objection is that the laws passed by congress are being enforced, and that this regulation now overlaps with the enforcement of those laws”
No, it is that for the past 40 years those laws haven’t been enforced and other unrealted discrimination law has developed, along with explicit conscience-violating mandates that the other discrimination law tolerates, some of which would not occur by actually enforcing these laws that Congress repeatedly passed, but which will occur after all because Obama is an abortion extremist. The lawyers in your quote are talking about law that has developed in the absence of the enforcement of these regulations. Their quote is a hyperbolic talking point, not a contribution to understanding what will really happen. Please cite at least one of the “interpretations and court cases over the past several decades” that were enforcing these Congressional conscience protections in a different way than the HHS reg will, or in any way at all.
A “broad” interpretation does not mean an interpretation outside the scope of the original law. I have yet to see an example of how a specific part of the regulation exceeds the scope of a specific part of one of the laws Congress passed to protect conscience. I have, however, seen the language of those laws copied verbatim into the forms that funding recipients must sign promising that they don’t violate conscience pursuant to those laws.
Sean,
I am not sure what the point is of discussing the ACOG rules, since I understand they backed away from them.
Moreover, there is nothing in the regulation that would prevent a hospital from requiring a physician to tell a patient, “I do not perform abortions based on my religious convictions and cannot discuss that option or refer you to a provider who does, you must seek another provider if you wish to discuss an abortion.”
But can you tell me if there is anything in the regulation that would require a doctor to make that statement? As I said before, the problem with the regulation is that it is all about the rights of “conscientious objectors” and says nothing about the rights of patients.
Your argument about doctors always withholding options is unconvincing. One of the most frequently discussed situations is emergency contraception for rape victims. You brought up the “Peoria protocol” in an earlier thread, but this regulation doesn’t say anything about the Peoria protocol. Under this regulation, a rape victim could come into the emergency room, and if the doctor on duty didn’t want to bring up the matter of emergency contraception, that would be the end of it.
Let me point out that I am arguing for reasonable accommodation for medical “conscientious objectors,” and you are arguing for their absolute right to refuse, without any rights for the patients. Don’t you think there should be some balance? We are not just talking about abortion and contraceptives here. We’re talking about anything some medical worker claims he or she objects to.
I am bowing out of this discussion. Apparently no one else is interested in making the case against this ill-conceived regulation, and I don’t have time to raise all of the objections myself.
I tried to post but couldn’t. I will give my final paragraph: “Be careful what you wish for.” What would you say if a crisis pregnancy counseling center hired a worker and then found out that her conscience required her to counsel pregnant women on all the choices available to them, including access to abortion? If you think that’s an unacceptable outcome (I do), then you need to rethink the conscience rules. Because those rules would essentially prevent that center from carrying out its mission, as they would other clinics or health care entities if the conscience rules were applied as written to all entities, whatever the size, that receive even modest amounts of federal funding.