The Ethics & Religious Liberty Commission

Letter to HHS on Conscience Protections Proposal

By Richard Land - Apr 21, 2009 - 3 -

On behalf of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, we urge the Department of Health and Human Services to reject its proposed rule “to rescind in its entirety” the final rule entitled “Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law,” promulgated late last year (73 FR 78072, 45 CFR Part 88). We believe the conscience protections rule implemented under the Bush administration should be retained in full. Our reasons are several.

This letter by Richard Land was sent to HHS on April 9, 2009.

Implementation of Existing Laws

First, the fundamental role of the Executive branch, as defined by the U.S. Constitution, is to “take Care that the Laws be faithfully executed.” The regulation issued by the Department under then-President George W. Bush is in keeping with this responsibility. Over the last 35 years, Congress has firmly established conscience protections as part of federal law. Such laws have been signed and reaffirmed under Republican and Democrat administrations alike. The Bush administration rule is consistent with three overarching conscience protection laws: the Church Amendments, the Coats-Snowe Amendment (Section 245 of the Public Health Service Act), and the Weldon Amendment.

The Church Amendments, enacted during the 1970s, provide a series of protections on matters of conscience to both health care entities, including hospitals, and the individuals practicing in health care professions. Among the provisions, the Church Amendments preclude the government from requiring a health care entity, as a condition of federal funding, “to make its facilities available for sterilization procedures or abortions, if the performance or assistance in the performance of sterilization procedures or abortions in the facilities is prohibited by the entity on the basis of religious beliefs or moral convictions.” Also under the Church Amendments, individual physicians and health care personnel are protected against discrimination in employment, promotion, and termination for adhering to personal moral objections on abortion performance or assistance. The Amendment further protects applicants from discrimination for “reluctance, or willingness, to counsel, suggest, recommend, assist, or in any way participate in the performance of abortions or sterilizations contrary to or consistent with the applicant’s religious beliefs or moral convictions.”

The 1996 Coats-Snowe Amendment (Section 245 of the Public Health Service Act) builds on these amendments by barring government discrimination of funding against any health care entity that refuses to “undergo,” “require,” “provide,” or “provide referrals for” training in the performance of induced abortions. More recently, the Weldon Amendment, first adopted in 2005, stipulates that no funds under the HHS Appropriations Act are to be administered to any federal, state, or local government or agency that discriminates against health care entities that refuse to “provide, pay for, provide coverage of, or refer for abortions.” Congress has reaffirmed the Weldon Amendment in every subsequent year.

The Bush administration’s decision to implement these longstanding conscience protection laws with a federal rule was the necessary step to bring clarity to the law and greater accountability to the health care workplace. To do otherwise, confusion on protections under existing law would only persist among medical professionals and patients.

Violations of Health Care Conscience Protections

Second, widespread reports of workplace discrimination and coercion are demonstrative of the need to maintain a federal rule with protections for the right of conscience. A growing body of reports provides evidence of these abuses among doctors, pharmacists, medical students, and other health care workers. A survey by the Christian Medical Association found that 41 percent of its members reported having been “pressured to compromise Biblical or ethical convictions.” The types of reported cases span a number of scenarios. These include hospitals pressuring medical workers to perform or refer for abortions, insurers pressuring physicians to artificially inseminate lesbian couples, medical professors compelling students to receive abortion training, and pharmacies coercing employees to dispense abortifacients such as Plan B or RU-486. The consequences—threatened and in some cases realized—often include loss of job, denial of promotion, or discrimination in hiring.

Also alarming is a policy issued by the ethics committee of the American College of Obstetricians and Gynecologists (ACOG) that could allow for the decertification of obstetricians and gynecologists who adhere to their conscience on matters of abortion. The November 2007 ACOG opinion (Committee Opinion Number 385) states that “Physicians and other health care providers have the duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that patients request. Providers with moral or religious objections should either practice in proximity to individuals who do not share their views or ensure that referral processes are in place.” One month later, the American Board of Obstetrics and Gynecology (ABOG) issued a bulletin stating that members could have their licenses revoked if they are found in “violation of ABOG or ACOG rules and/or ethics principles.” Such a policy expresses an unequivocal attempt to coerce heath care workers. It also undermines medical practice consistent with the more than two millennia-old Hippocratic Oath, which, for many physicians, includes taking measures to preserve and protect the health of not only a woman, but also an unborn human life.

Driving Health Care Workers from Medical Professions

Third, maintaining strong numbers of individuals serving in health-related fields demands that workers’ moral convictions in medicine are fully respected. The unintended consequence of failing to protect the right of conscience in health care would be a driving out of pro-life physicians and staff. Faced with a choice between conscience and career, many medical workers would choose the former, leaving their professions altogether. Lack of conscience protections also stands to bear impact on would-be medical professionals. Untold numbers of students considering pursuing medical degrees would opt for other fields of study in which conscience and career do not conflict. All combined, these exiting groups would amount to a shortage of critically needed doctors and nurses, potentially straining the system and creating a backlog for patient care.

Protecting Choice

Fourth, conscience protections are necessary to ensure medical professionals and patients alike are afforded a core principle of health care: choice. A common objection to the existing conscience regulations is that they deny or significantly reduce patient access to abortion services. This assertion is false. Medical professionals and health care providers who do not object to performing legal abortions or dispensing abortifacients remain free to offer such services. Patients, likewise, still have the choice to access such services.

What could be compromised by revoking the existing regulations, however, is choice for health care workers on administering services. No doubt confusion on conscience rights would return, along with more cases of discrimination and coercion. Further, patients with deep-seated moral convictions on abortion should have the choice to receive care from physicians who are committed to those same convictions in the medical practice. Similarly, they should have the choice to visit pharmacies that do not compel employees to dispense abortifacients.

Support for protecting choice has been shown among a large majority of Americans, even crossing political persuasions. A poll conducted March 23-25 by the Polling Company for the Christian Medical Association found that 87 percent of those surveyed believe it is important to “make sure that healthcare professionals in America are not forced to participate in procedures and practices to which they have moral objections.” Fully 78 percent of individuals who consider themselves “pro-choice” and 80 percent who voted for President Obama in the 2008 presidential elections supported protecting conscience.

Protecting Religious Freedom

Finally and most importantly, protecting the right of conscience for health care workers rests fundamentally on a cornerstone of our nation: religious freedom. As the moral concerns agency of the Southern Baptist Convention, the largest non-Catholic denomination in the United States with over 16.2 million members cooperating in about 44,000 churches, the Ethics & Religious Liberty Commission remains committed to preserving this cherished freedom. Freedom of religion and freedom of conscience are trademarks of the United States. Commonly referred to as the first freedom, the First Amendment’s protection of religious freedom extends beyond protecting an individual’s freedom to worship or not to worship. It also ensures that individuals need not check their consciences and moral convictions at the door of a hospital clinic or medical center. More importantly, we understand, as did our nation’s founders, that the right to conscience is not one given by government but by God. To compel or coerce individuals to sacrifice their core convictions at the altar of government contrivances is an offense of the worst sort.

Conclusion

Protecting conscience has been a longstanding core principle of our democracy. It has been long supported by Congress, and is embodied in the First Amendment and the Hippocratic Oath. To deny its protection by revoking the existing regulation would only rend the fabric of our democracy and open wide the door for discrimination against health care providers and professionals to proliferate. HHS should reject any and all efforts to rescind or weaken the existing conscience protections rule implemented in December 2008. The Department should retain the existing rule in its entirety as a necessary means to reinforce existing laws that have protected the right of conscience for more than 35 years.

Sincerely,

Richard D. Land

This letter was sent on April 9, 2009 to:
Office of Public Health and Science
Department of Health and Human Services
Attention: Rescission Proposal Comments
Hubert H. Humphrey Building
200 Independence Avenue, SW, Room 716G
Washington, DC 20201
Re: Rescission Proposal Comments
Docket ID Number: HHS-OPHS-2009-0001

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