USCCB: HHS Mandate for Contraceptive and Abortifacient Drugs Violates Conscience Rights

NEWS RELEASE

United States Conference of Catholic Bishops

WASHINGTON—The U.S. Conference of Catholic Bishops (USCCB) sharply criticized a new HHS “preventive services” mandate requiring private health plans to cover female surgical sterilization and all drugs and devices approved by the FDA as contraceptives, including drugs which can attack a developing unborn child before and after implantation in the mother’s womb.

“Although this new rule gives the agency the discretion to authorize a ‘religious’ exemption, it is so narrow as to exclude most Catholic social service agencies and healthcare providers,” said Cardinal Daniel N. DiNardo, Archbishop of Galveston-Houston and chairman of the USCCB Committee on Pro-Life Activities.

“For example, under the new rule our institutions would be free to act in accord with Catholic teaching on life and procreation only if they were to stop hiring and serving non-Catholics,” Cardinal DiNardo continued.“Could the federal government possibly intend to pressure Catholic institutions to cease providing health care, education and charitable services to the general public?Health care reform should expand access to basic health care for all, not undermine that goal.”

“The Administration’s failure to create a meaningful conscience exemption to the preventive services mandate underscores the need for Congress to approve the Respect for Rights of Conscience Act,” the Cardinal said.That bill (H.R. 1179), introduced by Reps. Jeff Fortenberry (R-NE) and Dan Boren (D-OK), would prevent mandates under the new health reform law from undermining rights of conscience.

Cardinal DiNardo added: “Catholics are not alone in conscientiously objecting to this mandate.The drugs that Americans would be forced to subsidize under the new rule include Ella, which was approved by the FDA as an ‘emergency contraceptive’ but can act like the abortion drug RU-486. It can abort an established pregnancy weeks after conception. The pro-life majority of Americans – Catholics and others – would be outraged to learn that their premiums must be used for this purpose.”

“HHS says the intent of its ‘preventive services’ mandate is to help ‘stop health problems before they start,’ said Cardinal DiNardo. “But pregnancy is not a disease, and children are not a ‘health problem’ – they are the next generation of Americans.”

“It’s now more vital than ever that Congress pass the Respect for Rights of Conscience Act to close the gaps in conscience protection in the new health care reform act, so employers and employees alike will have the freedom to choose health plans in accordance with their deeply held moral and religious beliefs.”

In a July 22 letter supporting the bill, Cardinal DiNardo wrote: “Those who sponsor, purchase and issue health plans should not be forced to violate their deeply held moral and religious convictions in order to take part in the health care system or provide for the needs of their families or their employees.To force such an unacceptable choice would be as much a threat to universal access to health care as it is to freedom of conscience.”

Cardinal DiNardo also addressed the Institute of Medicine’s recommendations on preventive services for women in a July 19 statement.

Respecting, protecting differences of conscience strengthens health care

National Catholic Reporter
28 July, 2011
Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Stephen Schneck*

The issue facing Sebelius is not contraception. The issue is conscience protection. The right of an American citizen to receive birth control or to obtain Plan B does not trump the right of a doctor to decline to participate in procuring an abortion. Nor does it trump the right of a citizen to decline to purchase a policy that pays for procedures they find morally repugnant. You do not have to share that moral repugnance to share the concern that violating the conscience of others runs against the entire spirit — and in the case of Catholic church ministries, against the very letter — of the First Amendment.

In the spring of 2009, President Obama nominated Kansas Gov. Kathleen Sebelius to lead the Department of Health and Human Services. Some conservative Catholics objected to the nomination because of Sebelius’ pro-choice stance on abortion, but many of us defended her, noting Sebelius’ successful tenure as governor of Kansas, and arguing that her position on abortion, whether we agreed with it or not, did not disqualify her from public office.

Later that same spring, controversy erupted within the Catholic church when the University of Notre Dame in Indiana announced it was awarding an honorary degree to Obama. A former U.S. ambassador to the Vatican, Professor Mary Ann Glendon, declined to receive Notre Dame’s Laetare Medal, citing the controversy. In her stead, Judge John Noonan, a Reagan appointee, delivered the Laetare address, in which he commented on the controversy and Glendon’s absence, saying, “One friend is not here today, whose absence I regret. By a lonely, courageous and conscientious choice she declined the honor she deserved. I respect her decision. At the same time, I am here to confirm that all consciences are not the same, that we can recognize great goodness in our nation’s president without defending all of his multitudinous decisions, and that we can rejoice on this wholly happy occasion.”

Today, that nomination and that speech are set on a potential collision course. On Aug. 1, Secretary Sebelius is set to release a new rule that will mandate certain medical procedures that must be covered by new insurance policies offered under the health care reform law. Existing policies will be “grandfathered” but if they undergo substantial changes, they too will have to abide by the new mandates.

Last week, the Institute of Medicine released its recommendations for procedures that should be mandated. These recommendations go a long way toward righting the disparities in coverage for women that have been long lamented. Some of the recommended procedures are both noncontroversial and will improve women’s health, such as a test for the HPV virus that is linked to cervical cancer. Other recommendations, however, are controversial, especially those that relate to sterilization and abortifacients.

For Catholics, abortion is not health care. We Catholics know something about the practice of health care because of the many hospitals we run throughout the country. We know that abortion is not like the other procedures you see going on in any hospital, that it is not designed to save a life but to extinguish one. Our commitment to human dignity, a commitment that leads us to defend the rights of immigrants and the value of social programs that help the poor and the vulnerable, also requires that we seek to defend the unborn.

The Catholic church has also long opposed artifical means of birth control. This is a stance with which many of our fellow Americans, and many fellow Catholics, disagree. The church has not tried to force others to adopt our position on birth control through legal means, but it has asked that it not be coerced into providing birth control at its hospitals or through insurance policies for its employees.

The issue facing Sebelius is not contraception. The issue is conscience protection. The right of an American citizen to receive birth control or to obtain Plan B does not trump the right of a doctor to decline to participate in procuring an abortion. Nor does it trump the right of a citizen to decline to purchase a policy that pays for procedures they find morally repugnant. You do not have to share that moral repugnance to share the concern that violating the conscience of others runs against the entire spirit — and in the case of Catholic church ministries, against the very letter — of the First Amendment.

Whatever procedures are mandated by the new rules, those that are morally controversial should include strong exceptions for religious organizations and for citizens with moral objections to those procedures. Respecting and protecting differences of conscience only strengthens American health care. Such respect, moreover, broadens support for the administration’s vision and leadership

“I am here to confirm that all consciences are not the same,” Noonan said. There is nothing liberal about adopting a rule that ignores the fact that all consciences are not the same. Those of us who supported Sebelius’ nomination argued forcefully that she should not be penalized because her conscience reached different conclusions on contentious issues from those reached by the leaders of the Catholic church. But it would be a tragic irony if, in adopting the new rules, Sebelius declined to afford to Catholic church organizations the same conscience rights we invoked when defending her nomination. Those of us who joined “Catholics for Sebelius” did not do so to see our conscience rights eviscerated.

Stephen Schneck

  • Director of the Institute for Policy Research & Catholic Studies, Catholic University of America
  • Fomer Department of Politics at The Catholic University of America
  • nine years and as Associate Professor in that department for fourteen years.
  • [Profile]

Spain violates conscientious freedom of medical practitioners

Public hearing at the Council of Europe

News Release

European Center for Law and Justice

(Strasbourg, France) – On June 22, 2011, the European Centre for Law and Justice (ECLJ) organized a public hearing at the Council of Europe, entitled “Spain: Violations of Medical Practitioner’s Freedom of Conscience”. It was conducted with the Spanish Defense Association of Conscientious Objection (ANDOC) and with the support of the European’s People’s Party.

During this hearing, the ANDOC and ECLJ have launched a comprehensive report detailing, with individual examples, the structural and systemic violations of freedom of conscience for healthcare professionals in Spain, and in particular their right to conscientious objection. The right to conscientious objection is founded on the principle that no one shall be forced to threaten someone’s life. Any attack on human life, when permitted by law, can be only performed voluntarily.

Based on this report, a number of parliamentarians from various national and political parties lead by Luca Volontè and Blanca Fernandez, have addressed a “Written question to the Committee of Ministers” urging this Committee, composed of the Representatives of the 47 Council of Europe Member States, to take action in order to ensure respect for doctors, healthcare and administrative personnel, as well as hospitals and institutions’ right to conscientious objection in compliance with European and international regulation. In the following months, the Committee of Ministers will have to agree on a common written response to the Parliamentary Assembly addressing this specific problem.

In Spain, health professionals suffer structural and systemic violations of their rights. Doctors, nurses, and other medical staff that object to performing or assisting with abortion procedures are coerced and suffer career-crippling sanctions or are legally prosecuted for attempting to exercise this fundamental right, which is recognized by both European and international law.

In particular, they are prevented from exercising their freedom of conscience through the following practices:

  • Submission of a fundamental right to administrative authorization: In order to exercise their fundamental right, a conscientious objector must request an authorization from the administration in advance and in writing.
  • Creation of a registry of conscientious objectors: The above requests are registered in a directory that ranks medical professionals according to their conscience.
  • Creation of a registry of conscientious objectors: The above requests are registered in a directory that ranks medical professionals according to their conscience.
  • Systematic discrimination against conscientious objectors
  • The presence in the directory has negative consequences for a medical professional. Their career advancement is dependent upon the number of abortions performed or prescribed through the “Accreditation Program of Professional Skills.” In Andalusia, recruitment in the health care system is subject to the condition of not being an objector.
  • No recognition of the right to conscientious objection of health care institutions that according to their ideology refuse to practice abortions.

Within this structure, there are also other violations such as:

  • Refusal to register a medical practitioner as an objector;
  • Deprivation of the right to object for the staff responsible for pre-natal diagnosis, nursing and other administrative personnel;
  • In order to prevent conscientious objections, the type of operation or information about a negative opinion from the clinical committee is not communicated to the medical professionals, especially to the anesthesiologists and clinical nurses.

During the hearing, presided by the Spanish parliamentarian and medical doctor, Dr Blanca Fernandez (PPE), has also intervened Dr. Esteban Rodriquez Martin, gynecologist, Prof. José Antonio Diez Fernandez Secretary of the ANDOC, and Dr. Grégor Puppinck, Director of the ECLJ.

Dr. Esteban Rodriguez Martin gave his testimony as a gynecologist and victim of the Spanish regulation on abortion and prenatal diagnostic procedures. He explained that he is now before national courts for refusing to take part in the procedure leading to eugenic abortions.

Dr. Esteban Rodriguez Martin underlined that professionals must request advance approval from Spanish administrative authorities to be listed as a “conscientious objector.” Only health care professionals placed on this list of “objectors” are exempt from performing or assisting with abortions, and often, this requirement is not communicated. As a result, if a woman solicits abortion services, health care professionals who object to providing assistance, but are not pre-registered as an “objector,” are legally obligated to either perform the abortion or give a referral-even if doing so would violate their conscience.

José Antonio Diez Fernandez, Professor of Law and Coordinator of ANDOC, presented the national legal framework leading to this structural violation of medical professional’s rights. He noted, inter alia, that those who register as conscientious objectors suffer further negative consequences and are unjustly singled out for voicing their objection. Often career advancement and health care ratings depend on the number of abortion referrals or procedures completed, he noted. Opting to register as an objector has career-stifling effects, because assessment of an objector’s professional skills becomes linked to ideological beliefs and not to the practitioner’s true merit or ability. He also highlighted how administrative authorities will often refuse a practitioner’s attempt to register as an objector. Though the process is supposedly declarative in nature, in practice, health care professionals may be refused to register as objectors for arbitrary criteria.

Dr. Gregor Puppinck, Director of the ECLJ, analyzed the situation in regard to the legal obligations of Spain under European and International law.

He recalled in particular the resolution 1763/2010 “On the Right to conscientious objection in the field of health” adopted in October 2010 by the Council of Europe Parliamentary Assembly holding that:

“No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason.”

He also commented on the case law of the European Court of Human Rights (ECHR) related to Conscientious objection underlining, in particular, the fact that in numerous decisions since the 1989 Rommelfanger v. Germany ruling (no. 12242/89), the Court has recognized the right of institutions based on a specific ethos, such as religious hospitals, to exercise – on an institutional level – their right of conscientious objection to abortion and other related practices.

Grégor Puppinck also commented on the ECHR’s recent ruling in the case R.R. v. Poland (no. 27617/04) of May 26, 2011. In this case, the Court asserted that if a State decides to legalize abortion, it is then “obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.” Two aspects of this ruling are of particular interest: first, it expresses the right to an “effective exercise of the freedom of conscience of health professionals in the professional context”, and second, it does not say that the access to abortion should be ensured at the expense of the fundamental rights of health professionals, but it say, however, that the State has to respect both.

Dr Puppinck concluded that in this regard, it is clear that the Spanish regulation does not respect both the individual and institutional right not to take part in an abortion process.

The ECLJ thoroughly supports ANDOC’s efforts to draw attention to this important issue. The right to conscientious objection must be respected. Rather than punishing health care professionals for exercising this right, Spanish authorities must comply with European and international standards to protect this right from the structural and systematic violations that conscientious objectors in Spain are experiencing today.

Related documents:

CoE PACE Resolution 1763 (2010) on “The right to conscientious objection in lawful medical care”

Written question to the Committee of Ministers on the violations of the right to conscientious objection in lawful medical in Spain. English | Spanish

ANDOC Informe sobre vulneraciones al derecho de objeción de conciencia de los profesionales de la sanidad pública en España.

2011 ECLJ Memorandum on the Proposed Pace’s Resolution on “Women’s Access to Lawful Medical Care: The Problem of Unregulated Use uf Conscientious Objection”. September 2010. English | Spanish

The European Centre for Law and Justice is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide. The ECLJ holds special Consultative Status before the United Nations/ECOSOC since 2007.

The ECLJ engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation. The ECLJ advocates in particular the protection of religious freedoms and the dignity of the person with the European Court of Human Rights and the other mechanisms afforded by the United Nations, the Council of Europe, the European Parliament, the Organization for Security and Cooperation in Europe (OSCE), and others.

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.