Without Conscience

Bob Laird remembers the day the woman first came to Divine Mercy Care’s Tepeyac Family Center, a Catholic OB-GYN service in Fairfax, Va. She was fearful that she had already lost her child.

“She had lost her water at about 12- 13 weeks. That is the ultimate sign of an impending disaster,” Laird, executive director of Divine Mercy Care, recalled.

Medically, the problem was that without the amniotic fluid to grow in, the child’s lungs might not develop properly. The woman risked giving birth to a child that could not take its first breath.

“There was a doctor who told her that her baby had a zero percent chance of viability after birth,” Laird recalled. She was advised to abort the fetus, but she refused. She wanted the child.

“She went to a whole bunch of doctors up in Maryland who would take care of her baby and found out about us. We basically put her in a hospital to keep the movement down, nurtured her until we could deliver her. And Joey came out screaming,” Laird said. “Call it a miracle. Call it whatever you want, but he’ll be three years old in October.”

He pauses for a second and adds: “We run into these kind of things all of the time.”

It is one example of why laws collectively known as the “conscience clause” are important. Simply put, the conscience clause allows doctors, nurses, and others in the health care field to refuse to participate in procedures or provide advice or referrals that violate their religious beliefs.

Without them, institutions like Divine Mercy Care might not be able to exist. The mother might not have been able to find a doctor who didn’t advise abortion.

“This is the key to the conscience clause. A woman needs to be able to go to a place where she is going to get solid advice from a doctor that will defend her (pro-life) position and go to bat for her,” Laird said.

Those days could be coming to an end. The Obama administration has taken the first steps toward undoing conscience clause laws.

The Federal Register is not exactly light reading. A daily publication of the federal government, it lists in numbing detail all of the federal government’s activities and pronouncements, ranging from grant opportunities to policy changes.

On March 6, it quietly announced that the federal government would rescind the “provider refusal rule” the Department of Health and Human Services policy had put in place less than two months before.

“The Department is proposing to rescind in its entirety the final rule,” the notice said. It was responding to critics of the policy who said “that the rule would limit access to patient care and raised concerns that individuals could be denied access to services.”

The “services” it is referring to is abortion.

A 30-day comment period followed and at press time no official action has taken place. But to both sides in the long fight over abortion it was a clear signal that the battle had been re-engaged.

“Today’s action by the Obama administration demonstrates that this president is not going to stand by and let women’s health be placed in jeopardy. By taking the first step in rescinding the harmful midnight regulation, the Obama administration is standing up for patients having the right to receive complete and accurate health information and services,” said Planned Parenthood Federation of America President Cecile Richards in a press release.

The US Conference of Catholic Bishops commented:

“Because the administration holds itself out as one committed to a policy of ‘choice’ regarding abortion, the administration cannot, consistent with that policy, remove the choice of nurses, doctors, clinics, or hospitals not to provide or facilitate abortions. There is absolutely nothing ‘pro-choice’ about forcing unwilling health care providers to participate in abortion,” it said in a March statement.

Douglas Johnson, legislative director for National Right to Life, was hardly surprised by the administration’s action. Throughout the presidential campaign Barack Obama had avoided discussing abortion-related issues. (In fact, nobody interviewed for this article could recall him ever mentioning the conscience clause.) But he was strongly supported by abortion-rights groups.

The HHS announcement is “important in that it illustrates where this administration wants to go and who they listen to” Johnson said. He expects that efforts to repeal the 2004 Weldon amendment, which forbids federal funds from being used to discriminate against health providers and insurers who refuse to provide or refer for abortions is next because it is renewed each year in the federal appropriations process.

“We will see in a few weeks, in the new appropriations bill, when it is revealed by the House Democrats if it is still in there,” he said.

After the Roe v. Wade ruling in 1973, Congress reacted by passing the Church Amendment that same year. The law exempted any private hospital receiving funds through Medicare or Medicaid from any requirement to provide abortions (or sterilizations) if they objected on “the basis of religious beliefs or moral convictions.”

There were two subsequent pieces of legislation that bolstered the law in 1996 and 2004. In addition, several states adopted similar laws, including Arkansas, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Pennsylvania, and South Dakota.

None other than Supreme Court Justice Harry Blackmun, who authored the majority opinion for Roe, endorsed these laws. He called them “appropriate protection” for individual rights.

But these laws were not very well known, says Philo Hall, an advisor to HHS Secretary Michael Leavitt during the last several years of the George W. Bush administration. Hall was counselor for humane service policy and he was heavily involved in the crafting of the HHS policy that the Obama administration wants to repeal.

The rule came about in response to lobbying by various pro-life groups, he says.

“We…were approached with anecdotes or stories and providers who felt that they were being pressured or forced to provide or refer for abortion. We were also concerned about what some providers saw as an increasing culture in the medical community that thought that providing and referring for abortions should be a mandatory part of care,” Hall said.

It should be noted that it is unclear exactly how often conscience clause cases have occurred. No one in federal government or on either side of the issue that this reporter spoke with could give even a ballpark figure. Planned Parenthood, for example, states on its website that “the total number of pharmacist refusal incidents is unknown.”

“We were working off of a number of anecdotal cases,” Hall said. The scarcity may be because few people knew the laws existed.

“The providers were often raising complaints (to us) but were unaware that they had these specific protections under the law,” Hall said.

This was the case even within HHS itself. Although the department was ultimately responsible for enforcing the laws, few within the department knew that was the case.

The tipping point Hall says was about a year ago, when the American College of Obstetrics and Gynecology put out an ethics opinion that said that health care providers who do not want to refer for abortions or provide gynecological work should not be in the profession in the first place.

“It was an informal opinion by ACOG. It had no regulatory impact. But there was a concern that it could impact board certification (of medical professionals) or other developments in the field,” Hall said.

The conscience protection policy was literally one of the very last things the Bush White House did. It was announced on January 20, the same day that Bush left office. Hence the charge by Planned Parenthood that it was a midnight ruling.

Hall says the reason it came late in the administration was that that was about the time that concern over the conscience clause peaked.

The purpose of the January 20 regulation was twofold: to clarify that this was the law and to require recipients of Medicare and Medicaid funds to certify that they knew this. It was that latter part that made it so controversial. Under the ruling, recipients of federal funds would have no excuse not to uphold the conscience clause.

The rescinding of the regulation means that uncertainty has been added to the issue. Hospitals and related institutions are now more likely to overlook these protections. Health care providers who wish to invoke these laws are now more likely to have to get a lawyer.

At an April 8 press conference at the National Press Club, doctors like Sandy Christiansen of Care Net Pregnancy Center in Frederick, Maryland expressed their concerns over what might happen to doctors with moral convictions if conscience clause protections disappear:

When I began my residency training, I expected it to be physically and emotionally challenging, but I was unprepared for the intolerance and discrimination I would face because of my Christian convictions. As an intern, I lost valuable learning opportunities as a direct consequence of my refusal to participate in elective abortions. When I questioned my chief resident as to why I wasn’t being given the opportunity to scrub in on interesting cases, she replied that the others had “worked hard doing the abortions and had earned this privilege” whereas I had refused to do this work and hence did not get the “perk.”

Even health professionals who work for places that do respect their views could be at risk, Laird says.

“Basically what they can do with Medicaid is say that unless he is willing to sign a statement that says that he is willing to make abortion referrals or something like that then we can’t provide Medicaid insurance to you,” he said. “I don’t know where Catholic hospitals are going to stand.”

Meanwhile, abortion-rights groups are arguing that anything that limits access to what patients want, especially abortion, is wrong.

“Physicians across the country were outraged when the Bush administration, in its final days, limited women’s access to reproductive health care,” Dr. Suzanne T. Poppema, board chair of Physicians for Reproductive Choice and Health, told CNN when the Obama administration announced plans to repeal the policy. She added that “hundreds of doctors” had protested the HHS rule.

On its website, Planned Parenthood states: “While we fi rmly believe that all people have a right to their own opinions and beliefs, it is unethical for health care providers to stand in the way of a woman’s access to safe, eff ective, legal, and professional health care.”

At a forum hosted by the liberal Center for American Progress, Sally Steenland, the center’s senior advisor for faith and progressive policy, put it this way: “There is more than one conscience involved. The needs of the patients must always take precedence,” Steenland said.

In response to this, Hall notes that abortion is not a core function of gynecology and there is no shortage of providers willing to perform the procedure. Besides the underlying laws do exist and do provide protection.

“The regulations that the Bush administration put out…said that if the ‘objected to activity’ is the core part of anyone’s practice, is the core part of the particular job, then they couldn’t have this objection to it,” Hall said.

Hall says that during the period when the Bush administration was soliciting comments on its regulation, most objections were not directed at the proposed regulation itself but the laws underlying it.

“The ruling was intended to strike a balance. Some providers object to abortion but do not object to referring for it. The rule wouldn’t change that situation. It was intended to recognize that there is a marketplace of ideas in the health care system and to make it easier for providers to not have to participate in services that they have grave objections to when they are not essential to their job,” Hall said.

Deirdre McQuade, spokeswoman for USCCB’s Secretariat of Pro-Life Activities, thinks she knows what the next batt le will focus on: whether doctors can not only refuse to perform abortions but refuse to refer for them as well. “Referral for abortion is material participation in the evil of abortion,” she said. “Even though a doctor or an anesthesiologist or a nurse many not be (directly) party to it, they are party to it if they refer. If they say we will not do this but somebody else I know will, let me give you that information, that is participating morally in the evil of abortion. So for the government to pressure doctors and nurses and other health care professionals to refer for abortion is just as offensive.”

Indeed, ACOG has lobbied Congress in the past on this very point. In an August 2005 letter to the US Senate, it said that doctors who refused to provide abortions “should be required to refer patients to other physicians who will provide the appropriate care.”

Ramesh Ponnuru, senior editor for National Review and author of The Party of Death, says the conscience clause has not been “a front burning issue” for the pro-life movement before. That may be changing.

“They raised the issue in a way that I think has got to be—over time—unhelpful to the Obama administration and to liberals. The whole game in the politics of a lot of these social issues is establishing your side as the victimized side and establishing the other side as the intolerant and aggressive side. I think as these conscience issues flare up the Obama side is going to look like it is imposing a liberal agenda and is intolerant of those who disagree with them.”