Conscience Rules Gutted?

Many pro-lifers are disappointed by the Obama administration’s new conscience-protection regulations. But some see hope.

(photo: Shutterstock image)

WASHINGTON — The Obama administration has dismantled key provisions of a Bush-era rule providing conscience protections for health-care professionals, raising fears that pro-life physicians and pharmacists will face increasing pressure to violate their moral principles.

The long-expected retreat from the fortified conscience protections introduced in the final days of the Bush administration was characterized in most media reports as striking a balance between the conscience rights of health-care professionals and the evolving needs of patients. A Department of Health and Human Services statement confirmed that “health-care providers cannot be compelled to perform or assist in an abortion.” The HHS statement introduced an “awareness initiative” — designed for health-care institutions that receive federal money — to help secure adherence to conscience protections and maintain access to an appeal process when claimants believe their rights have been violated.

“The Obama administration’s action is disappointing,” stated Deirdre McQuade of the Pro-Life Secretariat of the U.S. Conference of Catholic Bishops. “Still, by acknowledging the importance of conscience protections for health-care providers, the action also provides reason for hope.”

In December 2008, rules set by the Bush administration in its final days sought to strengthen the right of health-care professionals to opt out of an array of medical procedures that violated their religious or moral principles.

However, pro-abortion groups attacked the rules as an unwarranted violation of the right of patients to receive access to a spectrum of services and medications. The Department of Health and Human Services contended in mid-February that the Bush regulations “caused confusion and could be taken as overly broad.”

The Catholic Health Association, an ally of the Obama administration during the bruising legislative battle over the passage of the 2010 health-reform bill, applauded the “clarity of the new Federal Health Care Conscience Protections … especially in regard to the protection of conscience rights of institutions and individual health-care workers, most particularly in regard to abortion. The explicit citing of the legislative protections is appreciated. Also, CHA is gratified to see a commitment to education and a pathway for enforcement. We look forward to the implementation of these regulations.”

While expressing regret that the new regulations “gutted” key elements of the Bush rule, John Brehany, executive director and ethicist of the Catholic Medical Association, said his organization was “grateful that HHS did not rescind the rule, as Obama administration officials had promised, and we welcome HHS’s recognition that refusing to participate in abortion is an important civil right.”


Pro-life groups and religious-freedom experts, however, greeted the new rules with dismay. The Bush rules had fortified conscience rights, said pro-lifers, acknowledging that health-care professionals face mounting pressure to provide abortions, sterilizations and prescriptions for contraceptives, including those that sometimes act as abortifacients. Legal scholars note that in the absence of ironclad conscience protections, federal regulators are free to interpret claims of religious discrimination as they see fit.

Pro-life activists and bioethics scholars question whether the new rules have “teeth” to effectively defend the rights of health-care professionals under fire. And some experts worry that the new HHS rules could be part of a broader political effort to make access to all forms of artificial contraception a “right” of patients, while setting aside the more incendiary issue of abortion “rights.”

The National Catholic Bioethics Center “is gravely disappointed by the restriction of the scope of such protection from the original language, now limiting the protections only to abortion and sterilization procedures,” said Marie Hilliard, the center’s director of bioethics and public policy.

“The intent of the Provider Conscience Rule was to reinforce and reaffirm existing federal laws, which prohibit recipients of certain federal funds from coercing individuals in the health-care field into participating in actions they find religiously or morally objectionable. Such protection from discrimination ensures a vibrant pluralism in the delivery of health care,” Hilliard said.

“Increasingly, health-care professionals are being coerced to violate conscience in a myriad of ways, such as in the dispensing or administering the so-called ‘morning-after pill,’ as well as the pharmacist mandate to fill all legal prescriptions, even in a state where assisted suicide is legal,” she added.

Hilliard listed other services and procedures that could pose moral problems for health-care professionals, including “mutilating surgeries, such as transgender surgeries, or assisting unmarried persons with fertility treatments. Lastly, there is no clarification of the rights of conscience for emergency rooms, as it pertains to abortion.”

Media accounts have described the Bush rules as “controversial.” But Eric Kniffin, legal counsel for the Becket Fund for Religious Liberty, underscored the importance of the Bush-era rules for pro-life health-care professionals.

“The 2008 [Bush] rule offered detailed definitions and concrete examples to help health-care professionals and institutions know exactly what was protected. But all of that is gone now. Instead, the revised rule now says that ‘individual investigations will provide the best means of answering questions about the application of the statutes in particular circumstances,’” said Kniffin.

“The new rule removes even the modest requirement that funded entities certify their agreement to follow federal conscience-protection statues,” he added. “The tug-of-war over this federal regulation underlines the crucial importance of passing robust laws to protect freedom of conscience.”

Waiting for the Other Shoe

That judgment is shared by pro-life leaders in the U.S. House of Representatives who have introduced three separate bills that directly or indirectly seek to strengthen conscience protections.

David Christensen, senior director for congressional affairs for the Family Research Council, says the three bills “complement” one another and are part of an ambitious legislative strategy to extend conscience protections beyond health-care issues.

The Obama administration’s decision to rescind the Bush rules — more than two years after they provoked an uproar among key Democratic constituencies — has generated considerable debate in pro-life circles: Why did the president wait so long, and why did he choose this moment to act?

Michael New, an assistant professor at the University of Alabama and a fellow at the Witherspoon Institute in Princeton, N.J., offered one possible rationale behind the new HHS rules. Noting that pro-abortion groups have sustained a series of recent setbacks, New suggested that the decision to rescind the Bush rules was an attempt to refocus public attention from access to abortion to access to contraception.

“First, Philadelphia abortionist Kermit Gosnell was charged with eight counts of murder for using scissors to kill babies delivered alive in his abortion mill; then Live Action Films released a series of undercover videos showing Planned Parenthood employees eagerly assisting a pimp seeking care for underage prostitutes. … And on Friday [Feb. 18], of course, the House voted 240-185 to cut off federal funding to Planned Parenthood,” wrote New in an article posted on the National Review blog The Corner.

“This decision to rescind the Bush-era conscience regulations might be an attempt by President Obama to shift focus from abortion to contraception as the effort to defund Planned Parenthood works its way through the Senate,” New contended, adding that media reports on the campaign to defund Planned Parenthood also emphasized the institution’s role in providing contraceptives to low-income women.

It’s too soon to confirm whether New’s analysis is correct. But while the USCCB gives the administration some credit for publicly acknowledging the right to refuse to participate in an abortion, pro-life activists are waiting for the other shoe to drop.

Said David Christensen of the Family Research Council, “Given the administration’s consistent support for abortion rights, there is little reason for people who object to abortion to take this at face value.”

Joan Frawley Desmond writes from Chevy Chase, Maryland.