On December 18, 2008, the U.S. Department of Health and Human Services (DHHS) issued a "right of conscience" regulation that took effect on January 19, 2009. The rule, intended to reinforce and reaffirm existing federal laws on the books since the 1970s, prohibits recipients of certain federal funds from coercing health care providers into participating in actions they deem morally or religiously objectionable. A portion of the rule reads: "The ability of patients to access health care services, including abortion and reproductive health services, is long-established and is not changed in this rule. Instead, this rule implements federal laws protecting health care workers and institutions from being compelled to participate in or from being discriminated against for refusal to participate in, health services or research activities that may violate their consciences, including abortion and sterilization, by entities that receive certain funding from the department." Then Secretary of Health and Human Services, Michael Leavitt said, "This rule protects the right of medical providers to care for their patients in accord with their conscience." Recipients of funds from DHHS are required to certify their compliance with the rule in writing by October 2009. Non-compliance will result in having funding cut off or being required to return funding already received.

The rule has been opposed by numerous groups including the American Hospital Association, the American Medical Association, and the American College of Obstetricians and Gynecologists. Those opposing the regulation claim that it will create a major obstacle to a variety of services including abortion, family planning, end-of-life care and, possibly, some scientific research. Some believe the rule will be particularly burdensome on low-income women whose provider options are limited. Others predict "chaos" among providers across the country, especially among family planning centers and fertility clinics, and that it could affect states' enforcement of legislation requiring all hospitals to provide emergency contraception. The next six to twelve months should provide some indication as to whether these fears materialize. Even some supporters of the rule, however, have concerns about who and what are covered by it. Could it be interpreted too broadly to include too many and too much for reasons that fall short of the intended ones?

Supported by CHA, the new rule is an important affirmation of the right of all individuals to follow their conscience. The right of conscience is an essential component of respect for human dignity.

While this rule rightly affirms the right of conscience, it also brings to the forefront a number of challenging questions. Among them are the following:

• What are the professional obligations of health care providers to individuals who come to them seeking legal services that the provider believes to be immoral? How ought such providers respond?
• How do health care providers exercising their right of conscience respect the conscience of those with whom they disagree?
• Do health care providers have an obligation to their patients to present them the full range of viable options, even though the provider might object to one or more of these options on moral grounds? If not, what does that do to informed consent?

It should also be noted that the regulation prohibits discrimination against health care providers who choose to participate in lawful health services. The rule reads: "It also implements the provisions of federal law which protect health care personnel from being discriminated against for their participation in any lawful health service or research activity, including abortion and sterilization, by entities that receive certain funding from the Department." This does not apply within a particular institution that prohibits the performance of certain procedures or research, but it does seem to apply to health care professionals engaged in such activities outside the institution, for example, a physician with privileges at a Catholic hospital also working at an abortion clinic. The protection of conscience cuts both ways — it protects against coercion in activities that violate one's conscience and also protects against discrimination when one does participate in activities in accord with one's conscience that some judge to be immoral.

This could pose a challenge for Catholic health care organizations. An additional consideration for Catholic health care facilities and health care professionals working in them — full disclosure. Patients need to know from the outset what the facility/health professional will not do. It would seem prudent for Catholic health care organizations to discuss these and other ethical issues coming to the fore as a result of the rule, if they haven't already.

 

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