The Bush administration plans a new 'right of conscience' rule that would allow more workers to refuse more procedures. Critics say it could apply to artificial insemination and birth control.
By David G. Savage
December 2, 2008
Reporting from Washington -- The outgoing Bush administration is planning to announce a broad new "right of conscience" rule permitting medical facilities, doctors, nurses, pharmacists and other healthcare workers to refuse to participate in any procedure they find morally objectionable, including abortion and possibly even artificial insemination and birth control.
For more than 30 years, federal law has dictated that doctors and nurses may refuse to perform abortions. The new rule would go further by making clear that healthcare workers also may refuse to provide information or advice to patients who might want an abortion.
It also seeks to cover more employees. For example, in addition to a surgeon and a nurse in an operating room, the rule would extend to "an employee whose task it is to clean the instruments," the draft rule said.
The "conscience" rule could set the stage for an abortion controversy in the early months of Barack Obama's administration.
During the campaign, President-elect Obama sought to find a middle ground on the issue. He said there is a "moral dimension to abortion" that cannot be ignored, but he also promised to protect the rights of women who seek abortion.
While the rule could eventually be overturned by the new administration, the process might open a wound that could take months of wrangling to close again.
Health and Human Services Department officials said the rule would apply to "any entity" that receives federal funds. It estimated 584,000 entities could be covered, including 4,800 hospitals, 234,000 doctor's offices and 58,000 pharmacies.
Proponents, including the Christian Medical Assn. and the U.S. Conference of Catholic Bishops, say the rule is not limited to abortion. It will protect doctors who do not wish to prescribe birth control or to provide artificial insemination, said Dr. David Stevens, president of CMA.
"The real battle line is the morning-after pill," he said. "This prevents the embryo from implanting. This involves moral complicity. Doctors should not be required to dispense a medication they have a moral objection to."
Critics of the rule say it will sacrifice patients' health to the religious beliefs of providers.
The American Medical Assn. and the American Hospital Assn. in October urged HHS to drop the regulation. The Planned Parenthood Foundation and other backers of abortion rights condemned the rule as a last-gasp effort by the Bush administration to please social conservatives.
"It's unconscionable that the Bush administration, while promising a smooth transition, would take a final opportunity to politicize women's health," said Cecile Richards, president of Planned Parenthood.
Despite the controversy, HHS Secretary Mike Leavitt said he intends to issue the rule as a final regulation before the Obama administration takes office, to protect the moral conscience of persons in the healthcare industry. Abortion-rights advocates are just as insistent that the rights of a patient come first.
If the regulation is issued before Dec. 20, it will be final when the new administration takes office, HHS officials say. Overturning it would require publishing a proposed new rule for public comment and then waiting months to accept comments before drafting a final rule.
Abortion-rights advocates think it might be easier to get Congress to reject the rule. Sen. Hillary Rodham Clinton (D-N.Y.), before being nominated Monday for secretary of State, and Sen. Patty Murray (D-Wash.) have said they would move to reverse it.
The HHS proposal has set off a sharp debate about medical ethics and the duties of healthcare workers.
Last year, the American College of Obstetrics and Gynecology said a "patient's well-being must be paramount" when a conflict arises over a medical professional's beliefs.
In calling for limits on “conscientious refusals,” ACOG cited four recent examples. In Texas, a pharmacist rejected a rape victim's prescription for emergency contraception. In Virginia, a 42-year-old mother of two became pregnant after being refused emergency contraception. In California, a physician refused to perform artificial insemination for a lesbian couple. (In August, the California Supreme Court ruled that this refusal amounted to illegal discrimination based on sexual orientation.) And in Nebraska, a 19-year-old with a life-threatening embolism was refused an early abortion at a religiously affiliated hospital.
"Although respect for conscience is important, conscientious refusals should be limited if they constitute an imposition of religious or moral beliefs on patients [or] negatively affect a patient's health," ACOG's Committee on Ethics said. It also said physicians have a "duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that patients request."
Leavitt said ACOG threatened to brand as "unprofessional" those who do not share its attitudes toward abortion. In August, he criticized "the development of an environment in the healthcare field that is intolerant of individual conscience, certain religious beliefs, ethnic and cultural traditions and moral convictions."
In its announcement, HHS said the proposed rule was needed because of an attitude "that healthcare professionals should be required to provide or assist in the provision of medicine or procedures to which they object, or else risk being subjected to discrimination."
In a media briefing, Leavitt said the rule was focused on abortion, not contraception. But others said its broad language goes beyond abortion.
Since the 1970s, Congress has said no person may be compelled to perform or assist in performing an abortion or sterilization. One law says no person may be required to assist in a "health service program or research activity" that is "contrary to his religious beliefs or moral convictions." The HHS rule says that law should be enforced "broadly" to cover any "activity related in any way to providing medicine, healthcare or any other service related to health or welfare."
Judith Waxman, a lawyer for the National Women's Law Center, said Leavitt's office has extended the law far beyond what was understood. "This goes way beyond abortion," she said. It could reach disputes over contraception, sperm donations and end-of-life care.
"This kind of rule could wreak havoc in a hospital if any employee can declare they are not willing to do certain parts of their job," she said.
Savage is a writer in our Washington bureau.