Provider 'Conscience' Protections Have 'Long And Storied History' In U.S. Law, Opinion Piece Says

Main Category: Women's Health / Gynecology
Also Included In: Sexual Health / STDs;  Primary Care / General Practice
Article Date: 14 Jan 2009 - 3:00 PDT

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It "would be a mistake" for President-elect Barack Obama to take steps to repeal the HHS provider "conscience" rule issued by the Bush administration, Kevin Hasson -- president of the Becket Fund for Religious Liberty -- and Luke Goodrich -- legal counsel at the Becket Fund -- write in a Washington Times opinion piece. Hasson and Goodrich write, "Lost in the pro- and antiabortion debate is the fact that this regulation allows a health care provider to opt out of a procedure for one, and only one, reason -- that the procedure would violate their conscience." They note that "[p]rotections for conscience have a long and storied history" in U.S. law, including protections for conscientious objectors in wartime and laws that allow physicians in prisons to opt out of giving lethal injections. These laws "demonstrat[e] a simple truth -- it is wrong to force anyone to violate his or her conscience," according to Hasson and Goodrich.

They continue that the generally "[l]iberal opponents of the regulation" agree that requiring "a Quaker to go to war" or forcing "a death-penalty opponent to administer lethal injection" is wrong. They ask, "Why then is it fine to force an evangelical doctor to perform an abortion or a Catholic pharmacist to dispense contraceptives?" They continue that opponents to the regulation argue that "'conscientious objectors' in the health care context should simply find a different job -- one that does not conflict with their consciences. But that argument would exclude a large swath of the population from an entire occupation solely because of their religious or moral beliefs." According to Hasson and Goodrich, "Such discrimination would never be acceptable on the basis of race, gender or national origin. It is no more acceptable on the basis of religion." They add that the argument that these workers should seek another profession "ignores the fact" that many providers entered the field before the introduction of procedures that conflict with their beliefs, adding that it is "particularly deplorable to force these individuals out of their profession simply because new practices or technologies arose that conflict with their religious beliefs."

They write that the claim that the rule will restrict women's access to health care -- particularly contraception and abortion-related procedures -- is "rarely backed by empirical evidence," adding that "[w]hen one pharmacist refuses" a service, "other pharmacists are often more than willing to do so." They suggest that problems of access "could be solved by various measures short of forcing health care providers to violate their conscience," including "information-forcing measures -- which can be imposed on facilities rather than individuals." These measures are "much less intrusive than forcing all pharmacies to stock emergency contraception or forcing pharmacists to dispense them," Hasson and Goodrich write. "The access argument is also based on the subtle assumption that most conscientious objectors are just bluffing," which is "simply not true," they write. They continue that "[t]rampling the right of conscience, then, will not increase access to health care for anyone," but rather will "force qualified religious individuals out of the profession, ultimately reducing access to health care for everyone who is not seeking contraception or abortion."

Lastly, Hasson and Goodrich argue that the "constitutional right to an abortion is a right to be free from government interference in certain decisions regarding an abortion" and "is not (and never has been recognized as) an affirmative right to command the assistance of others in receiving an abortion." Protecting health care "conscientious objectors" gives Obama "an opportunity to answer a question that should not be above his pay grade: Is the right to follow one's conscience fundamental or not?" Hasson and Goodrich conclude, "Those who champion 'choice' and 'tolerance' should respect the conscience-based choices of those with whom they disagree" (Hasson/Goodrich, Washington Times, 1/11).

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