Thanks to the notice disclosed in the Dobbs In this case, abortion “rights” have become a hot topic on the left. But what about the rights of healthcare workers to refuse to abort babies? Or to refuse to participate in other orientations or procedures (such as euthanasia or sex reassignment surgeries) that they oppose on moral or religious grounds?
Under a proposed rule removal by the Biden administration’s Department of Health and Human Services (HHS), healthcare workers will have little recourse if their medical school, employer or state insists to participate in proceedings or removals to which they object. The rule in question has been a political football for the past four presidential administrations, but the current action by HHS is potentially more extreme than actions taken even by the Obama administration, and it threatens to leave the protections of conscience – which are required by federal law – without enforcement.
If Republicans sweep the midterm elections in November, they should reverse that decision and force all future administrations to uphold the conscience rights of doctors and nurses.
Congress established for the first time conscience protections for medical providers in the Health Programs Extension Act 1973 — adopted less than six months after the Supreme Court rendered its opinion in Roe vs. Wade — and subsequently adopted many similar provisions. The current protections are all tied to federal spending and effectively make it illegal for any health care provider receiving federal funds (which includes almost all health care providers at this point) to require participation or referrals to the abortion or assisted suicide.
Using its spending power as a means to extend its control far beyond the limits of Article I of the Constitution is common practice, but one that does not offer Congress much direct control. In this case, Congress did not even bother to establish an enforcement mechanism. Health care providers receiving federal funds cannot demand participation in an abortion, but if they do so in violation of the law, the consequences are unspecified, as is the enforcement authority.
Actions of the Trump and Biden administrations
Past presidential administrations have drafted regulations intended to clarify how federal conscience protections will be applied and to whom complaints should be made. In 2018, the Trump administration tightened related regulations after an astronomical jump in the number of cases of conscience filed with HHS, reportedly following an information campaign — ensuring doctors and nurses were aware of their rights under the law — and a sense that the Trump administration would actually enforce the law.
The Biden administration decided to overturn the 2018 settlement and currently sits on the Office of Information and Regulatory Affairs (OIRA) to review and discussion. We should expect the cancellation to continue, although we don’t yet know if the Biden administration plans to replace it with a weaker rule or simply leave conscience protections without any clear enforcement mechanism.
Congress was undoubtedly negligent in failing to include any real protections or penalties in its conscience provisions, but it is incumbent on the executive branch – as the enforcer of the laws – to fill these gaps with reasonable procedures. to make sure the laws are followed, especially when there’s federal taxpayers’ money at stake. And there’s evidence that those laws aren’t being followed, that doctors and nurses are being forced to participate in abortion and sterilization procedures against their moral and religious objections.
Doctors and nurses forced to act against their conscience
The American College of Obstetricians and Gynecologists Ethics Committee explained in 2007 and reaffirmed in 2016 next post on abortion and medical care:
Some experts have argued that in the context of pregnancy, a moral obligation to promote fetal well-being should also rightly guide care. But even if views on the moral status of the fetus and the obligations that status confers differ widely, support for such moral pluralism does not justify an erosion of clinicians’ fundamental obligations to protect the safety of women who are, primarily and unquestionably, their patients. .
Although no one disputes the responsibility of physicians to ensure the safety of their adult patients, the same statement makes it clear that this duty of care is based on the well-being of the patient “as the patient perceives it” – which does not not too subtly include abortion. So, in case you missed it, the official position of the professional organization of obstetricians and gynecologists is that moral and religious objections to abortion are “moral pluralism”, and they mean it in the strongest sense. euphemistic and pejorative. Meanwhile, abortion is treated as the norm.
Doctors and nurses pay attention to this kind of pressure. A Survey 2019 (replicating a 2009 survey) of more than 1,500 nurses and doctors linked to Christian professional organizations found that 76% of respondents believed the pressure to compromise their moral or religious beliefs had increased over the course of their professional career.
More than half of respondents believed healthcare professionals were discriminated against for refusing to participate in procedures for which they had moral or religious objections, and 23% believed they had personally been discriminated against because of their moral or religious convictions. Of the 20% of respondents who said they had decided not to pursue a career in a particular medical specialty due to potential moral and religious objections, the overwhelming majority (80%) identified obstetrics and gynecology.
Doctors and nurses cannot bring suits
For health care providers who have been forced to act in violation of their moral or religious beliefs, the laws and their current application leave few options for redress. As noted in the context of the 2018 Conscience Rule passed by the Trump administration, “In lawsuits brought by health care providers for alleged violations of some of these laws, courts have generally held that these laws do not contain or imply a private right of action to seek redress for such violations by Covered Non-Governmental Entities.
Thus, in most cases, a doctor or nurse compelled to participate in a morally or religiously reprehensible procedure cannot sue. That leaves enforcement to the federal government, which under the Biden administration has already shut down the Conscience and Religious Liberty Division within the HHS Office for Civil Rights (OCR) and is instead pushing a strongly pro- -abortion.
The concerns of medical conscience are too serious to fluctuate at the whim of the current presidential administration. Everyone knows that there is a deep divide between the American people on the issue of abortion, and a growing divide that includes issues like euthanasia and transgender surgeries.
Doctors, nurses and medical students should not be required to participate in these procedures or be referred for these procedures simply because of their position. This is not a matter for which religious medical workers should need to claim a special exemption: abortion and euthanasia are clear violations of the Hippocratic oath, and a perfectly reasonable person may believe that they are outside the scope of health care.
the history of cross-sex hormone therapy and reassignment surgeries are also low compared to the “do no harm” standard. On a defined and short list of morally contentious concerns, medical students and workers should enjoy reasonable conscience protections.
States could do more than the federal government to protect these rights
If Dobbs’ leak is consistent with the Supreme Court’s final ruling, then state legislatures will be more concerned with the issue of abortion than at any time in the past 50 years. State legislatures should also recognize their authority to protect healthcare workers and ensure that they are informed of all rights and enforcement procedures under state law.
Unlike the federal government, states are not limited to protecting medical workers by simply withholding funds: they can even use criminal law to protect the conscience claims of doctors, nurses and medical students. As states rediscover their powers within our federal system, they should protect both unborn babies and healthcare workers.
Given its reaction to Dobbs leak, the current Democratic-dominated Congress is unlikely to be much help in the short term. But if Republicans win a majority in the midterm elections, they should start adding clear enforcement mechanisms to existing federal conscience protections.
They can start by bolstering the Weldon Amendment, which has been part of Congressional appropriations for health care for many years. Congress should use the 2008 and 2018 Conscience Rules as a model for applying conscience protections. Those who violate these longstanding protections should, at the very least, lose their access to federal funds.
Eric Coykendall is Director of Operations for the Office of K-12 Education at Hillsdale College and a Fellow of the Claremont Institute. He holds a BA in politics from Hillsdale College and an MA in American politics and political philosophy from Claremont Graduate University. He is working on a thesis examining Supreme Court jurisprudence on the free exercise of religion.