A new rule from the Department of Health and Human Services (DHHS) has emerged as the latest battleground in the health care con- science wars. Promulgated during the waning months of the Bush ad- ministration, the rule became effec- tive in January. Heralded as a “pro- vider conscience regulation” by its supporters and derided as a “mid- night regulation” by its detractors, the rule could alter the landscape of federal conscience law.
The regulation, as explained in its text (see the Supplementary Ap- pendix, available with the full text of this article at NEJM.org), aims to raise awareness of and ensure compliance with federal health care conscience protection stat- utes. Existing laws, which are tied to the receipt of federal funds, ad- dress moral or religious objections to sterilization and abortion. They protect physicians, other health care personnel, hospitals, and in- surance plans from discrimination for failing to provide, offer training for, fund, participate in, or refer pa- tients for abortions. Among other things, the laws ensure that these persons cannot be required to par- ticipate in sterilizations or abor- tions and that entities cannot be required to make facilities or per- sonnel available for them. And they note that decisions on admissions and accreditation must be di vorced from beliefs and behaviors related to abortion. On their face, these laws are quite broad.
But the Bush administration’s rule is broader still. It restates ex- isting laws and exploits ambigu- ities in them. For example, one statute says, “No individual shall be required to perform or assist in the performance of any part of a
health service program or research activity funded” by DHHS if it “would be contrary to his religious beliefs or moral convictions.”1 Here the rule sidesteps courts, which in- terpret statutory ambiguities and discern congressional intent, and of fers sweeping definitions. It de- fines “individual” as physicians, other health care providers, hospi- tals, laboratories, and insurance companies, as well as “employees, volunteers, trainees, contractors, and other persons” who work for an entity that receives DHHS funds. It defines “assist in the perfor- mance” as “any activity with a rea- sonable connection” to a procedure or health service, including coun- seling and making “other arrange- ments” for the activity. Although the rule states that patients’ ability to obtain health care services is un- changed, its expansive definitions suggest otherwise. Now everyone connected to health care may opt out of a wide range of activities, from discussions about birth con- trol to referrals for vaccinations. As the rule explains, “an employee whose task it is to clean the instru- ments used in a particular proce- dure would also be considered to assist in the performance of the particular procedure” and would therefore be protected. Taken to its logical extreme, the rule could cause health care to grind to a halt.
It also raises other concerns. In terms of employment law, Title VII of the Civil Rights Act, which ap- plies to organizations with 15 or more employees, requires balanc- ing reasonable accommodations for employees who have religious, ethi- cal, or moral objections to certain aspects of their jobs with undue hardship for employers. But the
new rule suggests that if an em- ployee objects, for example, to be- ing a scrub nurse during operative treatment for an ectopic pregnan- cy, subsequently reassigning that employee to a different department may constitute unlawful discrimi- nation — a characterization that may be at odds with Title VII juris- prudence.2 As officials of the Equal Employment Opportunity Commis- sion remarked when it was pro- posed, the rule could “throw this entire body of law into question.”3
Furthermore, although the rule purports to address intolerance toward “individual objections to abortion or other individual reli- gious beliefs or moral convictions,” it cites no evidence of such intoler- ance — nor would it directly ad- dress such intolerance if it existed. Constitutional concerns about the rule, including violations of state autonomy and rights to contracep- tion, also lurk. And the stated goals of the rule — to foster a “more in- clusive, tolerant environment” and promote DHHS’s “mission of ex- panding patient access to neces- sary health services” — conflict with the reality of extensive objec- tion rights. Protection for the si- lence of providers who object to care is at odds with the rule’s call for “open communication” be- tween patients and physicians. Moreover, there is no emergency exception for patient care. In states that require health care workers to provide rape victims with in- formation about emergency con- traception, the rule may allow them to refuse to do so.
Recently, the DHHS, now an- swering to President Barack Obama, took steps to rescind the rule (see the Supplementary Ap-
n engl j med 360;15 nejm.org april 9, 2009
pendix). March 10 marked the be- ginning of a 30-day period for public comment on the need for the rule and its potential effects. Analysis of the comments (www. regulations.gov) and subsequent action could take some months. If remnants of the rule remain, liti- gation will follow. Lawsuits have already been filed in federal court, and Connecticut Attorney General Richard Blumenthal, who led one of the cases, has vowed to contin- ue the fight until the regulation is “finally and safely stopped.”4
This state of flux presents an opportunity to reconsider the scope of conscience in health care. When broadly defined, conscience is a poor touchstone; it can result in a rule that knows no bounds. Indeed, it seems that our problem is not insufficient tolerance, but too much. We have created a state of “conscience creep” in which all behavior becomes acceptable — like that of judges who, despite having promised to uphold all laws, recuse themselves from cases in which minors seek a judicial bypass for an abortion in states requiring parental consent.5
The debate is not really about moral or religious freedom writ large. If it were, then the medical profession would allow a broad range of beliefs to hinder patient care. Would we tolerate a surgeon who holds moral objections to transfusions and refuses to order them? An internist who refuses to discuss treatment for diabetes in overweight patients because of moral opposition to gluttony? If the overriding consideration were individual conscience, then these objections should be valid. They are not (although they might well be permitted under the new rule). We allow the current conscience- based exceptions because abortion remains controversial in the Unit- ed States. As is often the case with
laws touching on reproductive freedom, the debate is polarized and shrill. But there comes a point at which tolerance breaches the standard of care.
Medicine needs to embrace a brand of professionalism that de- mands less self-interest, not more. Conscientious objection makes sense with conscription, but it is worrisome when professionals who freely chose their field parse care and withhold information that patients need. As the gate- keepers to medicine, physicians and other health care providers have an obligation to choose spe- cialties that are not moral mine- fields for them. Qualms about abortion, sterilization, and birth control? Do not practice women’s health. Believe that the human body should be buried intact? Do not become a transplant surgeon. Morally opposed to pain medica- tion because your religious beliefs demand suffering at the end of life? Do not train to be an inten- sivist. Conscience is a burden that belongs to the individual profes- sional; patients should not have to shoulder it.
Patients need information, re- ferrals, and treatment. They need all legal choices presented to them in a way that is true to the evidence, not the randomness of individual morality. They need predictability. Conscientious ob- jections may vary from person to person, place to place, and proce- dure to procedure. Patients need assurance that the standard of care is unwavering. They need to know that the decision to consent to care is theirs and that they will not be presented with half-truths and shades of gray when life and health are in the balance.
Patients rely on health care pro- fessionals for their expertise; they should be able expect those profes- sionals to be neutral arbiters of
medical care. Although some scholars advocate discussing con- flicting values before problems arise, realistically, the power dy- namics between patients and pro- viders are so skewed, and the time pressure often so great, that there is little opportunity to negotiate. And there is little recourse when care is obstructed — patients have no notice, no process, and no ad- vocate to whom they can turn.
Health care providers already enjoy broad rights — perhaps too broad — to follow their guid- ing moral or religious tenets when it comes to sterilization and abor- tion. An expansion of those rights is unwarranted. Instead, patients deserve a law that limits objections and puts their interests first. Phy- sicians should support an ethic that allows for all legal options, even those they would not choose. Fed- eral laws may make room for the rights of conscience, but health care providers — and all those whose jobs affect patient care — should cast off the cloak of conscience when patients’ needs demand it. Because the Bush administration’s rule moves us in the opposite di- rection, it should be rescinded.
Dr. Cantor reports representing an af- filiate of Planned Parenthood in a legal matter unrelated to conscientious objec- tion. No other potential conflict of interest relevant to this article was reported.
This article (10.1056/NEJMp0902019) was published at NEJM.org on March 25, 2009.
Dr. Cantor is an adjunct professor at the UCLA School of Law, Los Angeles.
42 U.S.C.A. § 300a-7(d).1. Shelton v. Univ. of Medicine & Dentistry 2.
of New Jersey, 223 F.3d 220 (3d Cir. 2000). Pear R. Protests over a rule to protect 3.
health providers. New York Times. Novem- ber 17, 2008:A14.
Press release of the State of Connecticut At-4. torney General’s Office, Hartford, February 27, 2009. (Accessed March 20, 2009, at http://www. ct.gov/ag/cwp/view.asp?A=3673&Q=434882.)
Liptak A. On moral grounds, some judges 5. are opting out of abortion cases. New York Times. September 4, 2005. Copyright © 2009 Massachusetts Medical Society.
Conscientious Objection Gone Awry — Restoring Selfless Professionalism in Medicine
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