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The Dog in the Manger: HHS’s Continuing Conscience Crisis
August is supposed to be the silly season in Washington, but on August 21 things got very serious for providers of reproductive health care services, when the Bush Administration announced that it was going ahead with a controversial “Provider Conscience Regulation” proposed, then rescinded, then revised, by the Department of Health and Human Services.
The story so far:
ACOG and ABOG
In November 2007, the Committee on Ethics of the American College of Obstetricians and Gynecologists (ACOG) released a thoughtful opinion, “The Limits of Conscientious Objection in Reproductive Medicine,” stating that a physician’s right of conscientious objection to providing or participating in reproductive-health procedures – including abortion and the dispensing of emergency contraception – was limited by physicians’ core professional responsibilities. Because health care providers have a duty not to coerce patients, they do not have the right to impose their personal religious or moral beliefs on patients. Because health care providers have duties to honor patient self-determination, promote informed decision-making, and uphold scientific integrity, they do not have a right to give patients inaccurate, biased, or unproven information concerning the risks associated with certain procedures.
The ACOG opinion emphasized that when a conscience refusal is based on a belief about science – such as the pharmacodynamics of emergency contraception – the health care provider holding that belief has a special duty to get the known facts right: “when the rationale for a refusal contradicts the body of scientific evidence,” the refusal is “invalid.”
The opinion also emphasized health care providers’ responsibility not to disrupt health care by failing to inform patients (and colleagues) about services they would not provide, or by failing to refer patients to other providers. The responsibility to refer is consistent with conscience clauses in professional codes and hospital policies: as the pharmacists’ professional association, APhA, puts it, a refusing professional has the right to step away, but not to step in the way of the patient by failing to make a referral.
Perhaps the most controversial aspect of the ACOG opinion was the assertion that, in an emergency, a professional has a duty to provide a service to which he or she objects, if no other provider is available and the patient’s physical or mental health is at risk. Critics interpreted this to mean that pro-life obstetricians would be forced to provide abortions.
In March 2008, HHS Secretary Mike Leavitt wrote to the American Board of Obstetricians and Gynecologists (ABOG), which certifies ob-gyns, to express “strong concern” that the ACOG policy would force physicians to choose between their conscience and their license. ACOG announced that it was taking a second look at its opinion, while firmly rejecting allegations from Leavitt and other critics that ob-gyn board certification would hinge on providing abortions.
In late July, the press reported on a draft HHS regulation barring federal funding to health care organizations that refused to honor conscience refusals related to abortion. The “Church Amendment,” which, like most state conscience clauses, dates from the Roe v. Wade era, has long provided for a right of conscience for employees of federally funded health care facilities. Amendments to other federal statutes in 1996 and 2005 have reinforced a federally-protected right of conscience. The need for yet another federal conscience clause was unclear: the draft proposal suggested that HHS was responding to a general lack of knowledge about these statutes. What alarmed pro-choice advocates, health policy experts, and 100 members of Congress was the proposal’s extremely broad definition of “abortion,” extending to many forms of contraception. As a Boston Globe editorial noted on July 30, 98 percent of American women – including some who are opposed to abortion – will use contraception at some point in their lives. Reclassifying contraception as abortion, without scientific evidence to back up this claim, defied a commonsense distinction between conception and contraception. An unnamed NIH source told the Washington Post that the “redefinition” was “ideologically based and not based on science.”
In the midst of the uproar over the HHS draft regulations, the public learned that HSS Secretary Mike Leavitt keeps a blog. On August 7, in a posting entitled “Physician Conscience,” Leavitt described the draft regulation as an effort to “enforce long-standing laws” concerning conscience rights, and denied any hidden agenda to conflate abortion with contraception. On August 11, in response to the intense criticism of the draft regs, Leavitt took up one argument against conscience clauses: health care professionals shouldn’t “pick and choose” which services they will provide. Leavitt reduced this critique to “if a person goes to medical school they lose their right of conscience.”
But not quite: nearly every state has at least one conscience clause on the books, and health care organizations and professional groups, as noted, typically have detailed conscience clauses statements that explain how the right of refusal in that organization or profession is constrained by a health care provider’s moral responsibility, at all times, to respect and safeguard access to care. As Ascension Health, the nation’s largest nonprofit health care system and the nation’s largest Catholic health care system, states on its website: “While conscience clauses protect the autonomy and religious freedom of health care providers organizations . . . they also affect patient access.” Ascension’s conscience clause notes that there is no right “to discriminate against patients who seek those procedures” to which a provider objects.
On August 22, Leavitt offered another straw-man argument, suggesting that ACOG had linked professional certification to meeting competency standards that ignored conscience claims.
Not quite: ob-gyns are not required to demonstrate competency in providing abortions, and most medical students opt out of elective training, as they are permitted to do under AMA guidelines covering medical education. Leavitt also announced in this posting that a revised version of the draft regulations had just been put up for public comment in the Federal Register. Initial press coverage of the revised regulations noted that while the abortion/contraception conflation had been dropped, there was sufficient semantic ambiguity to suggest that the regulations could apply to certain forms of contraception, and Leavitt himself acknowledged that some providers would “ ‘press the definition.’”
Early reactions to the revised regulations have been predictable. Reproductive health providers foresaw consequence-free gaps in access to the emergency contraceptive Plan B in rural communities served by a single provider, in public health clinics heavily dependent on federal funding and fearful of running afoul of HHS regulations, and in the ERs of Catholic hospitals that currently may be required by state law to offer Plan B to rape survivors. The president of Pharmacists for Life, whose members refuse to fill prescriptions for contraceptives in defiance of their own profession’s “step away, not in the way” conscience clause, said the idea of federal health care funding being cut to states that require pharmacists to fill or refer such prescriptions was “ ‘pretty excellent’.”
The Conscience Clause Fog
This is a dispiriting chronology. It is dispiriting to read the concluding sentences of Leavitt’s August 22 blog posting, which reduces the democratic right of free speech to “protected conscience,” without mentioning the social responsibilities that balance individual rights. Absent too is any suggestion that “conscience,” to a health care provider, may mean much more than what is defined, permitted, or prohibited in a “conscience clause.” Ask a physician or nurse if they struggle with their conscience during the course of a typical workday, and they are likely to describe situations in which they are intimately involved, not situations from which they exempted themselves. Typical triggers for a crisis of conscience are the perception that one is “doing to, not doing for” a critically ill patient, or that the health care system is rigged against certain patients, and that there’s no good way to fix the situation. This is not to dismiss the concerns of providers who are morally opposed to procedures whose science they understand. But the broader, messier category of moral distress – specifically, the provider’s distress when health care systems fail those who suffer – is absent from the regulatory “gotcha” approach, which eliminates the struggle from “conscience” and reduces it to a formula, or a weapon. It is also dispiriting to read that implementing these redundant regulations will cost $44 million. That’s $44 million that will not provide anyone with access to safe and effective health care.
And it is dispiriting to note the dog-in-the-manger tone of those who dismiss the importance of upholding access to safe and effective health care as a principle as well as a practice. When health care professionals deem it “pretty excellent” that states could be punished for trying to hold providers accountable to the idea that access matters, it is a sad day for the health of women, and the health of the nation.
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