Doctors Say ‘Yes’ to Their Right to Say ‘No’
Bush Administration Seeks Comment on Conscience Regulations
BY ROBERT KUMPEL
September 7-13, 2008 Issue | Posted 9/2/08 at 11:32 AM
WASHINGTON — The Bush administration is proposing stronger regulations to protect physicians and health-care workers who refuse to participate in abortions for reasons of conscience.
Health and Human Services Secretary Michael Leavitt made that announcement Aug. 21. Leavitt expressed concerns for doctors who were facing retaliation from employers and medical societies if they refused to perform abortions. These regulations would require hospitals, medical offices and nursing homes to certify in writing that they are complying with federal laws already in place that protect the conscience rights of health-care workers.
In 2007, the American College of Obstetrics and Gynecology upped the ante for physicians with conscientious objections in “The Limits of Conscientious Refusal in Reproductive Medicine.” The statement insisted that doctors who would not perform abortions must at least refer for them — a practice many pro-life physicians find unconscionable. The American College of Obstetrics and Gynecology grants board certification to obstetricians and gynecologists. This certification is considered the standard by all hospitals for employment, and no doctor can hope to join a hospital staff without it.
Health and Human Services spokesman Kevin Schweers said the new regulations are in a 30-day “comment” period, after which the cabinet department will examine the comments. A final rule proposed by Leavitt will follow. “When the decision for the final proposal is made, an effective date will be set for the final rule.
“These regulations are very important to a lot of physicians,” said Schweers. “We have physicians on record who say that they were never even aware that there are conscience laws to protect them.”
Abortion, however, is not the only objectionable procedure doctors are faced with. The Health and Human Services regulation proposal was issued only three days after the California Supreme Court ruled that two doctors who refused to artificially inseminate a lesbian could be sued for discrimination.
The American College of Obstetrics and Gynecology, NARAL (National Abortion Rights Action League) Pro-choice America and Planned Parenthood did not return phone calls from the Register seeking comment. But on its website, the Southwest Women’s Law Center in Albuquerque, N.M., said: “The overwhelming majority of Americans support policies that make it easier for women to obtain contraceptive services. If adopted, the Administration’s draft policy would make it much more difficult for women to obtain birth control and information about birth control. The women who would suffer the most from the draft policy are low-income women, disproportionately women of color, who are dependent on publicly-funded health care for family planning services.”
Richard Doerflinger, assistant director of the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops, said the California ruling reflects anti-discrimination laws trumping the First Amendment.
“These doctors always said that they did not inseminate single persons, and there is no law in California that says you have to treat the single like they’re married,” Doerflinger said. “But if the ruling that created a right to gay ‘marriage’ stands, they won’t be able to make that claim either. This is another consequence of a line of cases the U.S. Supreme Court handed down in 1990, beginning with Employment Division v. Smith, saying that the First Amendment does not protect religious convictions as strongly as it used to, because as long as a law is of ‘general application’ and is not directed by bigotry or animus, then even people who object on religious grounds have to comply with the law, so long as it has a legitimate purpose.”
Ken Pedroza, the attorney who represented the two physicians in their appeal to the California Supreme Court, wasn’t surprised by the decision. “After oral arguments, we weren’t shocked. I realized at that point that the chances of us winning were very, very low,” he said. “It seemed to me that the court was not going to be ruling in our favor. The question was: How far were they going to go? They got rid of our affirmative defense based on the free exercise of religious rights.
“In California, we have conscience laws that protect doctors who don’t want to perform abortions, termination of life and other health-care procedures, and pharmacists have a conscience clause as well. They cover some good areas, but in situations like ours [artificial inseminations], doctors don’t have that same conscience right, and the California Supreme Court decided that doctors don’t have a free exercise right in that context.”
He said he would like to see new regulations that fit the context of the artificial insemination case.
Doerflinger believes the Health and Human Services regulations are long overdue. “We need to enforce the laws on conscience rights, some of which have been on the books for 35 years but have never been clarified by regulations. Now they can be more effectively enforced.”
Catholic Medical Association executive director John Brehany said the new regulations are “urgently needed.” While conscience protections exist, Brehany said states are not always consistent or comprehensive.
“Secretary Leavitt says that one reason for promulgating new regulations is that many people don’t know about the laws, how they apply, and it is not required for institutions or people to document that they are in compliance with them,” Brehany said. “When there are laws on race and sexual discrimination, everybody must certify that they are in compliance, yet this [conscience] is a very constitutional and human right, yet there is no requirement. I think Secretary Leavitt is bringing clarity to why conscience rights should be protected under the law and is trying to educate people about what it means.”
He added, “We need to bring greater comprehensiveness and consistency to protecting the conscience rights of health-care providers. In the California case, the regulations would certainly have made it harder” to sue the doctors.
Interns Under Pressure
Brehany said that medical residents and interns have complained to the Catholic Medical Association about the pressure they face to prescribe contraceptives and perform abortions. “These pressures are out there. There are several laws that prohibit this, and yet they don’t know their rights. This is a frequent occurrence, and these laws would especially help the young.”
He points out the recent move of the American College of Obstetrics and Gynecology to exclude doctors who won’t perform abortions from board certification. “This is an attack on physicians, since they consider this refusal to be an ‘ethics violation,’” he said. “So would be refusing to do sterilizations or provide contraception. If you have one of these ‘violations,’ they would revoke your board certification.
“There are protections for conscience under the law and in our culture. We were founded on freedom of religion. It’s ironic that these other, much more recent rights that have been manufactured — including ‘you can’t discriminate against someone because of sexual orientation’ — these more recent rights are trumping and running right over the conscience rights.”
Robert Kumpel is based in
InformationTo read the proposed regulations and to comment on them, go to HHS.gov.
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