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New HHS division, conscience freedom laws and policies protect patients and physicians

By Jonathan Imbody | March 01, 2018

by Jonathan Imbody

This excerpt is the sixth in a series of essays on conscience in healthcare, by Jonathan Imbody, Vice President for Government Relations of the Christian Medical Association and Director of Freedom2Care. The essays respond to "Physicians, Not Conscripts — Conscientious Objection in Health Care," Ronit Y. Stahl, Ph.D. and Ezekiel J. Emanuel, MD, PhD, New England Journal of Medicine 376;14, April 6, 2017.

In January 2018, the U.S. Department of Health and Human Services announced the creation of a new division within its Office of Civil Rights—the Conscience and Religious Freedom Division. The new division now serves as a center for information on 25 federal conscience laws, outlined on the division's website, including:

  • The Church Amendments, enacted in the 1970s "to protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortion or sterilization procedures if doing so would be contrary to the provider’s religious beliefs or moral convictions."
  • Public Health Service Act § 245, which "prohibits the federal government and any state or local government receiving federal financial assistance from discriminating against any health care entity on the basis that the entity refuses to undergo training in the performance of induced abortions" and related actions.
  • The Weldon Amendment, which prohibits government "discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions."

Dr. David Stevens, CEO of the 19,000-member Christian Medical Association, noted in a news release lauding the new division, "There are already laws on the books, and this proposed rule will help address the injustices that those laws were designed to prevent. Our members have been discriminated against and some have even lost positions for speaking out."

In that CMA news release, I added, "Polling indicates that faith-based physicians will be forced to leave medicine if coerced into violating the faith tenets and medical ethics principles that guide their practice of medicine. These faith-based health professionals do not and cannot separate the faith principles that motivate them to help others and serve the needy from the faith principles that uphold the sanctity of human life.

"So conscience protections like the proposed rule announced today are key to not only protecting American freedoms of faith and conscience; they are also key to protecting patient access to principled healthcare."

While many lauded the new division as protecting fundamental conscience freedoms and First Amendment rights, some political activists issued "hair-on-fire" statements condemning the division as devaluing humanity and promoting religious bigotry.

"This is the use of religion to hurt people because you disapprove of who they are," asserted Harper Jean Tobin, the National Center for Transgender Equality's director of policy, in a statement published by The Washington Post.

No one's objecting to treating "particular classes of patients"

Writing in the New England Journal of Medicine, Obamacare architect Ezekiel Emanuel and Penn Professor Ronit Stahl also equate conscience objections with bigotry, asserting, "No matter how sincerely held, objections to treating particular classes of patients are indefensible — regardless of whether the objections are based on race, gender, religion, nationality, or sexual orientation."

Well, sure, that would be indefensible—if it were actually happening. But, of course, the authors provide no examples of such insidious discrimination. It's just useful for stirring up an emotional response: "I don't want to be labeled a bigot, so let's get rid of these conscience laws that legalize bigotry!"

When President Obama gutted a two-year-old Bush-era conscience protection regulation, an opponent of conscience rights exclaimed to the Washington Post, "Without the rescission of this regulation, we would see tremendous discrimination against patients based on their behavior and based just on who they are.  We would see real people suffer, and more women could die."

Of course, no real-life examples were cited, and apparently none occurred in the years after the conscience protections took effect.

The truth is that conscience protections do not allow physicians to refuse to treat "particular class of patients." In fact, faith-based health professionals (who depend on conscience protections against coercion) in particular have gone to great lengths to purposefully reach out to the marginalized, the stigmatized and victims of discrimination.

Health policy will always reflect opinions

The Washington Post article on the new HHS conscience and religious freedom division also quoted Sarah Warbelow, legal director for the Human Rights Campaign, who asserted that the policy seeks to "devalue the humanity of LGBTQ people. Every American deserves access to medically necessary health care, and that health care should not be determined by the personal opinions of individual health care providers or administrative staff."

While real-life examples of medical professionals "devaluing the humanity of LGBTQ people" are scarce or nonexistent, examples of personal opinions impacting healthcare are ubiquitous. It's also notable that at the same time that Ms. Warbelow argues to disallow the "personal opinions" of health professionals from influencing healthcare, she argues that her own personal opinion, her group's own ideology, must direct healthcare.

Opponents of conscience protections frequently assert the mantra that conscientious health professionals are forcing their opinions on others. But pro-life physicians do not force their patients or anyone else to adopt a pro-life view; they simply seek exemption from coercion to kill.

Yet intolerant abortion advocates cannot seem to countenance diversity of opinion in healthcare. They would force pro-life physicians to perform or refer for abortions or else sacrifice their careers. Then they complain with straight faces about pro-life physicians forcing their opinions on others.

The idea that health professionals must ignore their moral and ethical convictions and perform any and all legal procedures is, in itself, a personal opinion expanded into an ideology—"an orientation that characterizes the thinking of a group or nation" (according to the Advanced English Dictionary definition).

The conscience debate will impact the future of healthcare

In a free society, we can and should debate the question: Would eliminating conscience freedoms be good or bad for healthcare, for patients, for health professionals, for the country? But to assert that health professionals who base their practice of medicine on certain ethical prohibitions are uniquely forcing their "personal opinions" on others is patently hypocritical.

Healthcare policies always reflect opinions; they are conceived and implemented by individuals who have personal opinions and by groups that have ideologies. Our democratic republic is designed to debate opinions freely and then translate the best opinions into laws that benefit society. We elect lawmakers who share our opinions and will translate those opinions into laws and policies.

For example, the law that imposed the Affordable Care Act (ACA) on the nation clearly reflected the opinions and big-government ideology of Democrats. The repeal and replacement of the ACA clearly reflected the opinions and small-government ideology of Republicans. Even if Congress decided to get out of healthcare altogether, that decision to disengage would be a policy formed by opinions and ideology.

For millennia, medicine and law have provided room for conscience freedom—differing convictions on controversial issues—among health professionals. Many would continue that long-standing policy of tolerance for reasons both pragmatic and philosophical:

  • Tolerance maximizes healthcare access by enabling a breadth of professionals to practice medicine;
  • Tolerance comports with professionalism and professional judgment (a health professional being one who professes to adhere to an ethical standard that guides his or her practice of medicine);
  • Tolerance offers patients the ability to choose health professionals in line with the patient's own values; and
  • Tolerance reflects core American principles of freedom of conscience, faith and speech.

The current debate, then, is not about "imposing opinions;" it is about whether or not our long tradition of tolerance for a range of ethical positions should be continued or discontinued. The result of that debate will significantly impact the future of medicine, healthcare access and religious freedom.

Related Resources

"Choose, you lose" prescription threatens the conscience rights of every professional by Jonathan Imbody

Autonomy quickly translates to tyranny by Jonathan Imbody


Medical ethics: Bedrock oaths versus zeitgeist barometers by Jonathan Imbody

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