Provider conscience regulation
The "Provider Conscience Regulation," proposed by the U.S. Department of Health and Human Services (HHS) in August 2008, has occasioned an enormous amount of attention and debate. The regulation was issued as a final rule on December 19, 2008 and became law on January 20, 2009. On March 5, 2009, the Obama Administration formally announced its intention to rescind this regulation after a mandatory thirty day period to allow for public response. This response period ended on April 9, 2009.
This regulation was designed to protect doctors and healthcare personnel from having to violate their consciences in the performance of medical procedures, and to exempt medical facilities from having objectionable procedures performed on their premises. HHS Secretary Mike Leavitt said that this regulation "protects the right of medical providers to care for their patients in accord with their conscience."
The Provider Conscience Regulation aims at enforcing federal conscience right laws, and to ensure that these laws are faithfully executed. The purpose of the regulation is threefold: (a) to raise consciousness in the public, in the health care community, among recipients of federal funds, and among protected individuals and entities of their rights and responsibilities, (b) to ensure that federal funds do not support coercive or discriminatory practices or policies, and (c) to establish regulatory enforcement measures.
Under this regulation, workers in health care settings can refuse to provide services, information or advice to patients on subjects that they find objectionable on religious or moral grounds, e.g., contraception, family planning, blood transfusions, and vaccine counseling. Institutions are required to certify in writing that they will comply with the regulation, and failure to comply may be punished with loss of federal funding. Controversy has arisen about the wide scope of this regulation, but not over the protection itself.
On April 2, 2009, during her first confirmation hearing before the Senate committee on Health, Education, Labor, and Pensions, Governor Kathleen Sebelius, now Health and Human Services Secretary, testified in this regard, "I can tell you right now that the President supports and I support a clearly defined conscience clause for providers and institutions. I always have." This important acknowledgement serves to clearly demonstrate the Obama Administration's commitment to uphold the importance of federal conscience statutes and perhaps regulations that support their significance.
Over a thirty-six year period, Congress has enacted three separate statutes to protect provider conscience rights:
First, in the 1970s, the Church Amendments were enacted to protect both those who choose to participate in abortion and sterilization and those who choose not to do so.
Second, in 1996 the Public Health Service Act was enacted to prohibit federal, state, or local governments that receive federal financial assistance from discriminating against individual or institutional health care providers, including participants in medical training programs, who refuse, for example, to receive training in abortions, require or provide such training, perform abortions, or provide referrals for, or make arrangements for such training or abortions.
Third, in 2005 and subsequent years, the Weldon Amendment has been attached to the Labor/HHS/Education appropriations act prohibiting the provision of federal funds to any state or local government or federal agency or program that discriminates against institutional or individual health care entities on the basis that that entity does not provide, pay for, provide coverage of, or refer for abortion.
These federal statutes are consistent with the Supreme Court's 1973 acknowledgment in Roe v Wade of the right of physicians, hospitals, and other care providers not to be discriminated against on the basis of their moral convictions against performing or facilitating abortion.
Awareness of these federal protections have been frequently ignored or overlooked, thus raising the importance of some form of regulatory enforcement. In 1999, for example, a bill was introduced in the California State Assembly that required, among other things, Catholic hospitals to provide or arrange for abortions. In 2000, members of the California Medical Assistance Commission attempted to force Catholic hospitals to provide abortion and other reproductive services as a condition of receiving a Medi-Cal contract. And in the same year the California Medical Association presented a resolution to the American Medical Association's House of Delegates urging the enactment of laws to strip hospitals that decline to participate in abortion from receiving tax-exempt financing or participating in state-supported health care programs.
Freedom of conscience is not a sectarian, religious, or Catholic belief. It is an American conviction. We have conscientious objection against war for those who cannot fight. We have conscientious objection for doctors against being involved in administering the death penalty. Freedom of choice must belong to everyone, including those who have deep moral concerns about the sacredness and dignity of embryonic and fetal life. The dignity of every person and the sanctity of human life are bedrock values which must inform our commitment to provide quality health care to all who require it, and to preserve the conscience rights of health care providers.
By Father Gerald Coleman
Sulpician Father Gerald D. Coleman is vice president for ethics for the Daughters of Charity Health System.
From May 15, 2009 issue of Catholic San Francisco.
