Holly Lynch on the Bush administration's new 'conscience rule'

President Bush is promulgating a host of new rules and regulations in the waning days of his presidency. One of these 'midnight regulations' was issued last week: a new 'conscience rule' for medical providers. These rules are meant to protect health care workers from being forced to provide medical procedures to which they object on religious or moral grounds. "Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience," Michael O. Leavitt, secretary of Health and Human Services (pictured at left), said in a statement.These rules have been the subject of much debate, especially when the topics at issue are abortion or contraception.

The propriety, necessity, and reach of such rules is a topic that Holly Fernandez Lynch explores at great length in Conflicts of Conscience in Health Care: An Institutional Compromise. Lynch is an associate at Hogan & Hartson in Washington, and her book, as the subtitle indicates, tries to find a middle ground between the demands of the right to care, on the one hand, and freedom of conscience and religion on the other.

We thought we should check with Holly to get her take on the Administration's new rule, and she sent back some thoughtful critical reflections:

Last week, the Department of Health and Human Services published a new regulation to enforce federal “conscience clauses” – laws that protect health care workers and institutions against “coercive or discriminatory policies or practices” based on their religious beliefs and moral convictions.  The highly contentious rule, which was denounced by now President-elect Obama and others when it was proposed over the summer, was finalized just in time to take effect before the buzzer sounds on the Bush Administration. 

It doesn’t contain the expansive definition of abortion that would have included certain types of contraceptives, the most controversial piece of a version of the rule leaked from HHS prior to publication of the initial proposal.  But the final rule does take a broad approach to protecting provider conscience in the realm of federally-funded health programs, extending well beyond physician refusals to perform abortions.  At its extreme, the rule protects any member of the workforce of a Department-funded entity (from doctors and nurses to administrative support staff and janitors) from having to participate in any activity with a “reasonable connection” to a procedure that the individual finds morally objectionable.    

In explaining the basis and rationale for the rule, HHS repeatedly asserts that it has done nothing more than ease enforcement of existing law.  In response to valid concerns that patients will have difficulty accessing important medical services in the face of conscientious refusals, the Department either expresses disagreement or punts – if there are access problems, it is because of the statutes that the new rule is enforcing, not the rule itself. 

Those conscience clauses are quite broad and have been on the books for decades, protecting not only refusals to perform, receive training, or refer for abortion, but in some cases, also extending to other health care services and even mere assistance in the performance of those services.  Thus, it is unfair to attack the new rule in isolation, and it will be insufficient to repeal the regulation by itself, although it is disingenuous for HHS to suggest that its rule changes nothing.  Most importantly, the new regulation offers expansive interpretations of ambiguous statutory terms, effectively allowing provider conscience to trump patient interests at every possible juncture, when other interpretations – such as who exactly can claim protection of conscience and what it means to assist in performance – would be equally reasonable.

Ultimately, the Obama administration will need to take a hard look at the entire legal system by which conscience can be protected in the health care setting while simultaneously assuring patients of access to services they deem important to their well-being.  Both of these goals are critical – the fundamental problem with the existing framework, however, is its one-sidedness.  In fact, the new rule would not be nearly so objectionable if it was accompanied by a comprehensive program to make sure that the medical profession as a whole was satisfying its collective professional obligation to preserve patient access in the face of moral refusals by some health care providers and institutions.  Even in this context, however, the new rule would need some revision.  For example:

·        HHS properly recognizes the value to patients of diversity in the medical profession, and suggests that protecting provider conscience will contribute to that diversity.  It also acknowledges that eliminating conscientious refusers entirely could exacerbate access problems, since refusers may provide other important services to patients.  Unfortunately, the Department fails to consider the possibility that protecting conscience without actively encouraging access to willing providers could actually result in homogeneity in the profession, and a corresponding lack of access to care.    

·        Similarly, the Department’s explanation of the new rule encourages doctor-patient matching based on shared moral beliefs, along with early and open communication about these beliefs to prevent potential conflicts down the line.  This model will be increasingly important as new medical technologies are developed that will more frequently introduce controversy at the bedside.  However, the rule itself does nothing to promote – let alone require – such communication, and even extends conscience protection to the refusal to provide counseling about services that the health care provider finds morally objectionable.  In so doing, the rule unacceptably ignores widespread recognition by courts, legislatures, and the medical profession itself of the absolute importance of informed consent to patient autonomy.

·        The rule also fails to provide any exceptions to the protection offered for conscientious refusals, and HHS explained that the choice established in applicable statutes was between federal funding and accommodation of conscience.  However, the Department did acknowledge that employers are only obligated to hire qualified individuals, and that refusal to hire an individual who is unqualified due to unwillingness to perform an integral task would not fall in the realm of impermissible discrimination based on conscience.  But that important clarification didn’t make its way to the regulation itself. 

·        Finally, to avoid conflict between conscience clauses and other federal anti-discrimination laws, HHS properly distinguishes between those objections based on the requested service or program, and impermissibly discriminatory bases for refusal rooted in an individual’s protected characteristics, such as race or sexual orientation.  However, in other areas of conflict, such as the requirement that Title X programs provide nondirective counseling regarding abortion, the Department explains that the new rule will trump – giving the interests of providers preference over those of patients.  

Overall, the one-sidedness of the new federal conscience regulation and existing legislation may simply reflect the fact that we have a long history and tradition of protecting religious freedoms in this country, but we are still struggling with the right to health care.  As President-elect Obama and Congress work to resolve that larger issue, resolving conflicts of conscience in health care in a way that balances the interests of all parties involved will be an important component.  Can I make a suggestion?