Category: Countries

Conscience and Mandates

National Catholic Reporter
Distinctly Catholic
21 July, 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

The rights of conscience are at the very heart of American history. . . In the jurisprudence of the Supreme Court, the rights of conscience have been vindicated by a long line of First Amendment cases that have raised the bar very, very high against those who would seek to impose their will against the conscience of a citizen.

Yesterday, the Institute of Medicine released its suggestions for what procedures should be mandated for inclusion in private insurance plans under the health care reform law. Some of the proposals seem non-controversial enough: They recommend, for example, that a more sophisticated, and expensive, test for the virus HPV, which is linked to cervical cancer, be part of the mandated services. That is all to the good. But, the recommendations also tread on some highly contentious areas regarding contraception and, worse, abortifacients. Those suggestions go to the Department of Health and Human Services which will formulate the final rules governing mandated coverage. To be clear, the recommendations released yesterday are just that, recommendations.

I am no scientist nor a moral theologian, so I will focus on what is, to me, one of the most pressing aspects of these regulations, the need to protect conscience.

The rights of conscience are at the very heart of American history. Many of the early colonists came to these shores seeking refuge from religious persecution, although the Puritans did not extend those rights to others once they arrived and set up shot. Roger Williams, however, did establish a religious justification for the rights of conscience in his colony of Rhode Island. This impulse to deny the community to right to coerce the conscience of an individual was leavened in the eighteenth century by Enlightenment influences and the First Amendment stands as a central tribute to, and protection for, those rights. In the jurisprudence of the Supreme Court, the rights of conscience have been vindicated by a long line of First Amendment cases that have raised the bar very, very high against those who would seek to impose their will against the conscience of a citizen.

As Catholics, we locate our concern for conscience differently from the way Locke or the Puritans or the Supreme Court did, but not that differently. For us, the rights of conscience are rooted in our beliefs about human dignity. In Vatican II’s Decree on Religious Liberty, a document that failed to resolve some of the deeper anthropological and theological issues surrounding conscience rights, the Church nonetheless affirmed its commitment to freedom of conscience, a milestone in the Church’s history.

Earlier this year, when the administration released its new conscience regulations, I made the point then, and it remains relevant to this discussion: Liberals should be ashamed of themselves when they cease to defend the rights of conscience. Simply from a PR perspective, it makes sense for the USCCB to solicit the aid of non-Catholic groups that defend First Amendment rights. Not only will this show that our case is more than one of special pleading, it will show that our stand is principled in every regard. The right of a woman to procure an abortifacient does not trump the right of a female doctor to refuse to provide one. Liberals need to do their homework before they dismiss the Church’s concerns.

A couple of other points come to mind. In a statement, HHS Secretary Kathleen Sebelius said the recommendations were “based on science and existing literature.” Well, I suppose John Locke still counts as “existing literature.” But, more to the point, science can only tell us so much and I am philosophically allergic to the kind of creeping scientism that believes that branch of human inquiry can solve all issues. It can’t. The insidious, racist book “The Bell Curve” claimed to be scientifically based, but the conclusions of that book stand condemned as inhumane nonetheless on philosophic grounds. As my mentor Leon Wieseltier said at the time, and which I have quoted before, “There is not a chart in the world than can explain the role of charts in the world.”

Second, there are some conservative Catholics – George Weigel comes to mind – who have argued that the bishops’ conference diminishes the “voice” of individual bishops. But, within hours of the release of the new recommendations from the Institute of Medicine, the USCCB had a statement critiquing them. The USCCB was able to respond quickly, forcefully and intelligently because it has staff that monitors these issues, just as local Catholic Conferences monitor such issues at the state level. Individual bishops could scarcely afford to keep full-time staff in Washington to monitor these matters. Richard Doerflinger does great and important work at the USCCB defending life, calling our attention to challenges facing the Church. I do not always agree with his conclusions but I am very glad to have him at the USCCB doing what he does.

Third, one of the political challenges for the Church in fighting these recommendations is that the number of pro-life Democrats serving in Congress shrunk drastically after last year’s midterm elections in part because groups like the Susan B. Anthony List attacked them and helped fund their opponents. Yes, they had differences over the health care reform law. And, the SBA List has every right to make their position known and support whom they like. But, why did they not try to replace pro-choice Democrats with pro-life Republicans? By going after pro-life Democrats with whom they had relatively minor differences, they have greatly weakened the bargaining power of the pro-life movement within the counsels of the Democratic Party.

Finally, and following up on a theme I have been addressing of late, I wish the USCCB statement had acknowledged some of the good in the new recommendations. After all, there has long been a deficit in coverage for procedures that are unique to women, and redressing that imbalance is a good thing. I understand that we must all set priorities. I understand that there is something morally shocking about the fact that our political leaders spend so little time addressing the lack of health care for the poor and the immigrants. But, I worry that the Church too often appears as a scold in public debates, always defensive, always rejecting. It costs us nothing to praise what is good.

This will be a big issue in the weeks and months ahead. Already professor Stephen Schneck, director of the Institute for Policy Research & Catholic Studies at CUA, and a man who took a lot of heat for his support of Sebelius’ nomination, put up a post last night on the public theology list-serve that read: “Plan B and similar should not be covered. The rationale for including such items in category intended for critical basic medical care is unpersuasive. Planned Parenthood and similar organization already provide contraception free to poor women. Moreover, on the face of it, the mandate seems to be at odds with the executive order that got some pro-life support for the health care bill. It’s time for the administration to be clear about its respect for religious concerns about life issues. At the very least, religious and conscience exemptions need reaffirmation now.” HHS would be well advised to listen to Schneck.

All of us have an obligation to inform ourselves about conscience rights. To that end, here are some of the more recent posts, including one by Schneck and another by Professor Robert Vischer of University of St. Thomas Law School in Minneapolis, that I ran here earlier this year.

Obama Administration Rejects Conscience Protections

The Heartland Institute

30 March, 2011
Reproduced with permission

William Saunders and Anna Franzonello

An issue of paramount importance for medical professionals is the protection of their right to conscience—their freedom to refuse or decline to do practices they oppose on religious or moral grounds. A February decision by the Obama administration, however, sweeps aside conscience protections instituted under President Bush.

The decision is not unexpected—the Obama administration initiated the process to rescind the Bush regulations on March 10, 2009. Unfortunately, it comes at a time when pressure to violate one’s conscience or leave the medical profession is not theoretical but very real.

Obama Rejects ‘Conscientious Refusal’

One such recent threat comes from the American College of Obstetrics and Gynecology (ACOG), which reviewed and reaffirmed its 2007 Ethics Committee Number 385, titled “The Limits of Conscientious Refusal in Reproductive Medicine” in November 2010.

Rule number 385 categorizes a conscience objection as a “refusal,” describing elective abortion and other controversial reproductive medical procedures and services as “standard.” The opinion states, “In some circumstances, respect for conscience must be weighed against respect for particular social values.”

On balance, according to ACOG’s rule, abortion is a social value that outweighs any conscientious objection. It requires prolife physicians to refer individual for abortions and even suggests they relocate their practices to better refer patients to nearby abortionists.

Could Strip Certification

The effect of the ACOG committee opinion is that otherwise qualified health care providers specializing in obstetrics and gynecology may lose their board certification solely because of their prolife values. According to the 2011 Bulletin for Basic Certification in Obstetrics and Gynecology from the American Board of Obstetrics and Gynecology (ABOG), an individual can have his or her board certification revoked if he or she acts in “violation of ABOG or ACOG rules and/or ethical principles.”

Without Board certification, a doctor is subject to discrimination by other entities. State and local governments, hospitals, or other institutions that require Board certification may take action against the physician. Thus, refusing to conform to the ACOG recommendations on abortion could result in the loss of a health care provider’s livelihood.

In finding that abortion is a circumstance where conscientious objection “can and should be overridden in the interest of other moral obligations that outweigh it,” ACOG’s subjection of conscience to patient autonomy leaves patients paying the ultimate price. Access to essential reproductive health care will be limited as prolife doctors are forced out of the field.

ACOG Threat Prompted Rule

When ACOG first issued its threat, then-Secretary of Health and Human Services (HHS), Michael Leavitt issued a letter to Norman F. Gant, executive director of ABOG, stating such discrimination would seem to violate federal laws protecting the right of conscientious objection to abortion.

ABOG and ACOG refused to change their policy, and the Bush administration enacted the “Regulation Ensuring that the Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Practice in Violation of Federal Law” in December 2008. The regulation required certification from entities receiving federal funds from HHS that they will comply with the established federal conscience protection laws.

Protection Removed

A recent case demonstrated the importance of the Bush rule. A nurse at Mt. Sinai hospital in New York, Cathy DeCarlo, was forced to participate in an abortion despite her conscientious objection. A federal court dismissed her claim, saying she cannot bring suit by herself. HHS then ruled the court can pursue the case because of the Bush regulations.

Now that President Obama has revoked the rule, conscience rights will likely have little protection against threats from ACOG and ABOG. It is unlikely Congress (particularly the Senate) has the votes to convert the revoked guidelines into a binding statute. For this reason, Americans United for Life has drafted a model bill to protect conscience at the state level, blocking discriminatory practices such as “refusal of board certification.”

Health care professionals face serious ethical issues on a daily basis. The Obama administration’s rejection of conscience protection ought to concern both health care providers and patients.

AULA Calls for strong conscience clause protection for medical professionals

“No longer should the civil rights of medical professionals be held hostage to political interests,” said Dr. Charmaine Yoest.

NEWS RELEASE

Americans United for Life

WASHINGTON, D.C. – Americans United for Life president and CEO Dr. Charmaine Yoest noted that the Obama Administration had rescinded almost all of the regulation protecting conscience rights for medical professionals – except the provision to file a complaint with the Office of Civil Rights at the Department of Health and Human Services.

“AUL predicted that the rights of conscience of medical professionals could be violated without stronger protections,” said Dr. Yoest. “This must come to an end. No longer should the civil rights of medical professionals be held hostage to political interests.” She continued: “Today the Obama Administration acknowledged that it is a civil right not to participate in an abortion, but in the same breath weakened federal regulations designed to protect that right. This underscores the necessity for Congressional action; health care providers must have an effective means to enforce their rights written in the law. The protection of the basic civil right to provide care without participating in life-destructive activities must not be dependent on the whims of an Administration that has made expanding abortion central to its mission.”

The Obama Administration received more than 300,000 comments when it announced in 2009 that it intended to rescind regulations enacted under the Bush Administration to uphold federal conscience protection laws. Nearly two-thirds of those comments expressed opposition to rescinding the conscience-protecting regulations.

For more information or interviews, contact Kristi Hamrick press@aul.org

USCCB Finds Weakening of Health Care Conscience Rule a ‘Disappointment’

Affirms Some Positive Elements

USCCB News Release 11-036
FOR IMMEDIATE RELEASE
February 18, 2011

United States Conference of Catholic Bishops

WASHINGTON (February 18, 2011)—The Obama administration’s final rule rescinding important elements of a federal regulation protecting the conscience rights of health care providers is a disappointment, but there are also reasons for hope, said Deirdre McQuade of the Pro-Life Secretariat of the United States Conference of Catholic Bishops (USCCB).

“The Administration’s action today is cause for disappointment, but also offers reasons for hope regarding an emerging consensus in Washington on the need for clear conscience protections for health care providers,” said McQuade.

“It is very disappointing that the Administration has chosen to eliminate much of the existing regulation on conscience issued in December 2008. Among other things, the final rule issued today eliminates important clarifications that would have helped in interpreting and enforcing longstanding federal statutes protecting the conscience rights of health care providers. It also eliminates a regulatory requirement that recipients of federal funds certify compliance with those statutes.

“However, it is welcome news that the Administration says it will take initiative to increase awareness of the conscience statutes, work to ensure compliance with them, and require that government grants make clear that compliance is required. We look forward to working with the Administration and Congress to ensure that these endeavors are carried out, so providers receive the full conscience protection they are due.

“We also hope that the Administration will place its full support behind efforts in Congress to clarify conscience protections and make them more secure, by endorsing such initiatives as the Protect Life Act (H.R. 358), the No Taxpayer Funding for Abortion Act (H.R. 3), and the Abortion Non-Discrimination Act (H.R. 361).”

  • Past USCCB letters supporting the Bush administration regulation, and opposing efforts to rescind it.

CMA Physicians, former HHS Asst. Secretary decry Obama administration’s regulatory action on conscience and discrimination.

NEWS RELEASE

Christian Medical Association

Washington, DC, February 18, 2011 — The 16,000-member Christian Medical Association (CMA, www.cmda.org) today protested the decision of the Obama administration to weaken the only federal regulation protecting the exercise of conscience in health care.

Dr. J. Scott Ries, a board-certified family physician and CMA’s vice president for Campus & Community Ministries, said, “The administration has made changes in a vital civil rights regulation without evidence or justification. The administration presented no evidence of any problems in healthcare access, prescriptions or procedures that have occurred in the two years since the original regulation’s enactment that would justify any change in this protective regulation.

“The administration, for example, contends that a rule change is necessary to protect access to contraception, but absolutely no evidence is presented to justify any such concern. In the process, the administration blatantly ignores the scientific evidence that certain controversial prescriptions that abortion advocates promote as contraception are actually potential abortifacients, ending the life of a living, developing human embryo. This is a critical concern for pro-life patients, healthcare professionals and institutions.”

The U.S. Department of Health and Human Services indicated in 2008 in its final rule, “We have found no evidence that these regulations will create new barriers in accessing contraception unless those contraceptives are currently delivered over the religious or moral objections of the provider in such programs or research activities.”

Dr. Ries added, “The Obama administration’s regulatory action today diminishes the civil rights that protect conscientious physicians and other healthcare professionals against discrimination. Any weakening of protections against discrimination against life-affirming healthcare professionals ultimately threatens to severely worsen patient access to health care.

“Losing conscientious healthcare professionals and faith-based institutions to discrimination and job loss especially imperils the poor and patients in medically underserved areas. We are already facing critical shortages of primary care physicians, and the Obama administration’s decision now threatens to make the situation far worse for patients across the country who depend on faith-based health care.”

National survey results show that over nine of ten faith-based physicians, who are among the most likely to be serving the poor and those in medically underserved areas, indicate they would rather leave the profession if denied the ability to practice medicine according to conscientiously held ethical standards. Survey results also indicate that 20% of faith-based medical students say they are “not pursuing a career in Obstetrics or Gynecology” because of perceived discrimination and coercion in that field.

Dr. Ries added, “Stories told to me by medical students across the country indicate that the threat of being forced to participate in abortion procedures and violate their moral integrity is enough to steer them in the opposite direction. That means even fewer physicians for women in the future in this specialty that is already facing critical shortages.

Former U.S. Assistant Secretary of Health Dr. Joxel Garcia noted, “Especially in physician shortage states such as Texas, Georgia, Alabama, Mississippi, Oklahoma, Utah, Nevada, Idaho and Delaware, losing just one physician can erase healthcare access for thousands of patients.

“Pushing conscientious physicians out of medicine is a significant step toward a healthcare system controlled by the state that moves away from the ethical roots of medicine. In the new governmental utilitarian model, the ‘common good’ defined by the state supersedes any moral, religious or ethical principle such as embodied in the Hippocratic Oath, which has protected patients for millennia.”

As the second-in-command under Sec. Mike Leavitt at the U.S. Dept. of Health and Human Services (HHS), Dr. Garcia oversaw the development and implementation of the conscience regulation and continues to work closely with the CMA and others to protect conscience rights. He currently serves as President and Dean at the Ponce School of Medicine & Health Sciences, where CMA provides a medical student ministry, as it does on over 90 percent of the nation’s medical and dental school campuses.

Dr. Ries’ clinical career has included faculty appointments at Indiana University School of Medicine and Butler University; he has also served as medical consultant to NBC, CBS, FOX and ABC network affiliates.