Protection of Conscience Project News

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.

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.

Professor Vischer on the new conscience regulations in February
Professor Schneck on the new conscience regulations in February (This was published by Catholics in Alliance for the Common Good and linked on my blog.)
MSW on liberals doing their homework regarding conscience regulations
MSW on efforts to prevent the awarding of a contract for a new hospital in the DC area to a Catholic hospital

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.