Conscience protections for healthcare workers: Freedom or coercion?

Protecting religious liberty was a policy priority for the Trump Administration. Early in 2018, President Trump created the Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR), which was tasked to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.”¹ Final regulations implementing those protections were issued in May 2019. These regulations provided practical assistance to healthcare workers with conscience-based objections to participating in medical procedures such as abortion, contraception, and sterilization.

Obama-era regulations had deliberately omitted these protections, despite strong constitutional and statutory foundations for them. Instead, the Obama Administration prioritized civil rights for other politically favored groups, including those seeking abortion and members of LGBT communities seeking assistance with reproductive and sex-transition treatments. Those groups responded critically to the Trump regulations and initiated litigation to enjoin them from protecting healthcare workers. Federal district courts in California and New York declared these regulations invalid, thereby denying their protections to healthcare workers. The Trump Administration appealed those decisions, but relief for the healthcare workers has been thwarted by the Biden Administration, which appears to be abandoning these appeals. Their policy priorities align with the challengers, not the healthcare workers.

Similar wrangling is now occurring over abortion funding restrictions promulgated by the Trump Administration in March 2019 under Title X. Planned Parenthood withdrew from Title X programs because its clinical operations could not separate family planning from abortion services, as required by these regulations. Lower courts soon enjoined these regulations, and they now face adjudication in the United States Supreme Court. However, the Biden Administration has moved to dismiss the litigation. Instead, it plans to issue new regulations that will enable Planned Parenthood and other abortion providers to receive this funding. This reflects the Biden policy commitment to expanding federal funding of abortion providers over the objections of pro-life taxpayers.

This is a game of political football, where administrative delays and litigation challenges keep the team with the ball from moving it. Policy adversaries can convince a friendly district judge to place regulations on hold while the process churns through the courts, effectively running out the clock. When an election changes possession of the ball, the other team’s progress is erased.

Unfortunately, good people are often caught in the middle of the gamesmanship. This not the first time that healthcare workers have been injured in the game. In December 2008, the Bush Administration had similarly endeavored to implement conscience protections for medical workers through regulations. Those regulations were also tied up in litigation until 2011, when the Obama Administration withdrew those protections through new regulations.

Just as Democrat administrations have systematically privileged abortion rights, they have also instinctively devalued the claims of religious minorities to the benefits of conscience protections. They reap political advantages from adopting the policy prescription of interest groups that benefit from rules that unfairly coerce others and infringe upon their fundamental rights. In favoring these coercive approaches, the Democrats unwittingly frame policy conflicts as zero-sum game, leaving no room for compromise and no place for the liberty interests of those who disagree with them. It need not be this way.

The paradigm of individual autonomy looms large in the framework for our diverse society. Commitment to that paradigm presents a conundrum, as the autonomy of the patient should not require the medical worker to lose hers, particularly when such a loss is not necessary. Can it reasonably be said that desires of patients for non-essential medical treatments justify coercion of unwilling agents? If the sting of rejection is sufficient, note that many others feel that sting in other contexts. Private business actors routinely refuse to provide goods and services to others based on political and value preferences, and the Democrats are fine with this. Big Tech firms are not being compelled to associate with ideas, entities, or persons with whom they (or their employees) disapprove. Large law firms are also touting their disassociation from unpopular persons or causes, despite a professional tradition that favors representation for all.

Healthcare workers are asking for something more sacred: the right to choose not to perform elective medical procedures that violate their conscience or sincerely held religious beliefs.

Differences of opinion are expected in a culture that prizes individual autonomy and which does not impose an orthodoxy of religion as a matter of law. We have traditionally imposed restraints on government coercion in matters of morals and religion, which recognizes that higher truths may exist than those reflected in laws of the state. When a plausible alternative exists, we opt against coercing a fellow citizen to offend God. This approach reflects not only measure of humility about the scope of our knowledge, but also respect for the dignity of others who are allowed to see the world differently.

In spending matters, we have traditionally prohibited the federal government from using tax dollars exacted from its citizens to fund abortions. This is a form of détente, which shows respect to all citizens in this contentious moral issue. Coercion wrought by taxation may be necessary to promote the common good, but abortion is not in this category. Instead, as Cardinal George declared in 2008,

Abortion kills not only unborn children; it destroys constitutional order and the common good, which is assured only when the life of every human being is legally protected. Aggressively pro-abortion policies, legislation and executive orders will permanently alienate tens of millions of Americans, and would be seen by many as an attack on the free exercise of their religion.²

For healthcare workers, regulation of their marketplace should reflect the importance of diverse approaches to medical treatment. That diversity provides patients with alternatives that will not be available under a coercive system that destroys not only the freedom of the provider but also the freedom of patients to be served by those who share their deepest convictions. We are aware of no case in which a medical professional would deny life-saving treatment or provide other than a respectful and compassionate approach to moral or religious disagreements with their patients about a course of treatment. Medical workers deserve our trust to exercise their best judgment about practicing the healing arts, just as we trust others to consult their moral and ethical compasses in doing their work.

Dividing citizens into categories and coercing those disfavored by the government to serve the desires of the favored will not achieve agreement or harmony; neither will clearing the marketplace of those who disagree with the favored government position. Toleration and respect for others will provide some hope of building consensus around the idea that we are all free to practice our faith, follow our consciences, and endeavor to persuade our fellow citizens about the important issues of our time, rather than coerce them.

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