The HHS provider conscience expansion is just one example of an insidious effort by religious right groups to tip the balance away from patient access to care and toward conscience exemptions without consequences.

Today, in a last gasp action of the Bush Administration the Department

of Health and Human Services (HHS) published regulations dramatically

expanding the right of health care workers to refuse to provide

services, information and referrals to patients seeking procedures,

prescriptions or other forms of care deemed by the provider as

“objectionable.” Through ambiguous language, the regulations could

deeply undermine long-established principles of medical ethics and

responsibility by, for example, allowing providers to conflate widely

used contraceptive devices, such as birth control pills and

intra-uterine devices, with abortion. Even by individuals and

institutions receiving federal funding to provide medical care.

Last spring, Congress reauthorized the U.S. Global AIDS Act,

with a budget of $50 billion through 2013. The act included an

expanded “conscience clause” that allows organizations with “moral or

religious” objections to opt out of engaging in evidence-based

approaches to HIV prevention, treatment and care, and ostensibly to

refuse treatment and care to those whose “lifestyles” or life choices

they might find offensive. Even by those organizations receiving tens

or hundreds of millions of U.S. taxpayer dollars to end the global AIDS

epidemic.

These laws have more in common than simply the semantics of the terms

“conscience” or “refusal” clause. Instead, they are part of an

ongoing, insidious and unfortunately increasingly successful effort to

privilege one form of religious “morality” and belief above all others

in a pluralistic society. Backers of these policies seek to redefine all forms of contraceptive

technology as “abortion,” stigmatize reproductive and sexual health

services of all kinds, marginalize persons whose sexual identities or

livelihoods they deem offensive, and break the social contract between provider and patient. In doing so, they flout

basic principles of medicine and public health by citing “conscience”

as justification for denying medical care, not just through individual

action but, in the use of federal funding and via application to whole institutions, as a societal ethic. It is

one thing for private practitioners to decide not to offer certain

kinds of services. It is another altogether to use your tax dollars to

use vague and sweeping definitions of religion and morality to deny not only a specific service, but

also information and referrals, including in life-threatening

circumstances.

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Under current U.S. global AIDS law, for example, a group with a “moral

objection” to the notion of “safer sex,” to sex work, or to the sexual identities of men who have sex with

men can deny accurate information on effective prevention or block

access to treatment or care by simply citing “conscience,” all the

while getting funded by the U.S. government to end the HIV/AIDS

epidemic.

These tactics go beyond what most people think of as “conscientious objection.” According to the American Civil Liberties Union (ACLU), the HHS rule would allow:

health care individuals and entities to refuse to provide

health care services for any reason whatsoever, including reasons based

on economics or discriminatory motives.

Moreover, these laws also have in common the groups that push for

them. The United States Conference of Catholic Bishops (USCCB) and the

Family Research Council (FRC) lobbied strenuously for the HHS

regulations. Saddleback Church joined USCCB, FRC and others to push

for restrictions on prevention programs and expand the “conscience”

clause in the US global AIDS Act. Not surprisingly, these groups also

lobby for tax dollars to support their programs here and abroad.

Conscientious objection has deep roots in social action and human

rights advocacy and, with respect to medical practice has long been

protected through various federal laws, such as the Church and Weldon Amendments,

and by statutes in at least 46 states. In addition, virtually all

medical associations have extensive and detailed standards of ethics

and conscience clauses.

Existing rules and regulations seek to balance a physician’s

conscientious objection to performing, for example, an abortion with

the profession’s obligations to afford all patients nondiscriminatory

access. These principles are recognized even by some religiously

affiliated medical entities that acknowledge their own objections to

providing certain kinds of care but recognize simultaneously their own

responsibilities in referring patients to access care they may need or

want.

Such ethical codes and standards recognize the inherent need to balance

the rights of the individual provider against the rights of the

individual patient and the social interest in promoting public health

and evidenced-based medical care. As bioethicist Nancy Berlinger of the Hastings Center states:

Conscientious objection in health care always affects

someone else’s health or access to care because the refusal interrupts

the delivery of health services. Therefore, conscientious objection in

health care always has a social dimension and cannot be framed solely

as an issue of individual rights or beliefs.

Public support for maintaining this balance is profoundly clear, as underscored by the results of a 2001 ACLU survey on this issue, which concluded:



This qualitative and quantitative research shows that

Americans overwhelmingly oppose laws that protect religious objectors

at the expense of the patient’s rights and the public health. The public opposes refusal clauses that threaten access to health care. 89% oppose "allowing insurance companies to refuse to pay for medical services they object to on religious grounds." 88% oppose "allowing pharmacies to refuse to fill prescriptions they object to on religious grounds." 86% oppose "allowing employers to refuse to provide their employees

with health insurance coverage for medical services the employer

objects to on religious grounds." [and] 76% oppose "allowing [hospitals] to refuse to provide medical services they object to on religious grounds."

By changing the terms of "conscience," the social contract balancing providers’ and

patients’ rights is broken, in part because these actions come without

a price to the so-called objector. In a 2005 article, bioethicist Alta Charo quotes Mahatma Gandhi and Martin Luther King, Jr. in stating that:

“in matters of conscience, the law of majority has no

place,” [but] acts of conscience are usually accompanied by a

willingness to pay some price. Martin Luther King, Jr. argued, “An

individual who breaks a law that conscience tells him is unjust, and

who willingly accepts the penalty of imprisonment in order to arouse

the conscience of the community over its injustice, is in reality

expressing the highest respect for law.”

But, as she points out, quoting Boston Globe columnist Ellen Goodman:

What differentiates the latest round of battles of

conscience clauses from those fought by Gandhi and King is the claim of

entitlement to “conscience without consequence.”

The consequences are however crystal clear and are felt by the person denied information, service or care. Medical and public health

professionals and the public writ large have found consensus around

services, information, and methods of medical care that should be

widely available. When individuals or groups are denied access, the

consequences are immediate and the harms directly proportional to the

level of economic and social disparity that limits access by

individuals to the care they want and need. Those harms are found

abundantly in high rates of unintended pregnancies due to lack of

access to contraception among economically and socially disadvantaged

teens, and high rates of HIV infection among women, especially

African-American women in the United States and women generally in

countries throughout Africa and Asia.

In the end, the actions by a few to rewrite the laws of conscience and

society are not just about a single law or policy, but a collective

effort to undermine a social contract on which much of our healthcare

is based. As numerous analysts have pointed out, there are ample

opportunities for the Obama Administration—through Executive and

Congressional action—to get rid of these specific and onerous

regulations. But to declare success and stop there will be to win the

battle and lose the war. These fights are as much about culture and

definition, about civil society action, vigilance and accountability on

an ongoing basis as they are about the law. And this particular fight

may well become increasingly pitched as we move toward health care

reform in the United States.

We have to recognize that legal and policy challenges are critical but

they are not enough. Those who believe in balancing provider’s rights

with patients needs and rights must be forceful and proactive in

putting the door back on its hinges, and that will take require

proactive conversation and mobilization, starting now.