New federal conscience protection regulations necessary, Doerflinger argues

Washington D.C., Nov 19, 2008 / 19:21 pm

Proposed federal rules prohibiting recipients of federal money from discriminating against pro-life medical professionals and other conscientious objectors continue to attract opposition. However, an official with the U.S. Conference of Catholic Bishops argues that the rules are necessary to enforce existing rights and to prevent conscience-burdening practices from dominating the medical profession.

The rules proposed by the U.S. Department of Health and Human Services (HHS) would also bar hospitals, clinics, doctor’s offices and drug stores from requiring employees with conscientious objections to “assist in the performance of any part of a health service program or research activity,” the New York Times reports.

The U.S. Conference of Catholic Bishops and the Catholic Health Association, which represents Catholic hospitals, both support the proposal.

Sister Carol Keehan, president of the Catholic Health Association, told the New York Times on Tuesday that in recent years “we have seen a variety of efforts to force Catholic and other health care providers to perform or refer for abortions and sterilizations.”

President-elect Barack Obama has objected to the proposed rules, arguing they would raise barriers to women seeking abortions or contraceptives. According to Obama’s aides and advisers, he will try to repeal the regulations after he comes to office but the process could take three to six months.

Three officials from the Equal Employment Opportunity Commission (EEOC), including Bush-appointed legal counsel Reed L. Russell, argued that the regulations are unnecessary because the Civil Rights Act of 1964 already prohibits employment discrimination based on religion, including moral and ethical beliefs about right and wrong.

“Federal law is explicit and unwavering in protecting federally funded medical practitioners from being coerced into providing treatments they find morally objectionable,” Russell told the New York Times.

Richard Doerflinger, Associate Director of Pro-life Activities at the U.S. Conference of Catholic Bishops, spoke about the proposed regulations and objections to them in a Wednesday phone interview with CNA.

He emphasized that the conscience protection regulations are broad in scope and are not limited to pro-life medical professionals.

“Some of these provisions protect people against discrimination for being willing to perform abortions,” he remarked, lamenting that many opponents of the proposed rules did not acknowledge this.

Doerflinger also criticized claims that conscience concerns are already addressed in the Civil Rights Act of 1964, deeming it a “totally separate law that has totally separate scope.”

“It only covers religious freedom, it doesn’t specifically relate to objections to medical procedures,” he explained, saying the new regulations “simply implement statutes passed by Congress over the past 35 years” and specifically relate to health programs.

“Two of the three statutes even have nothing to do with religion,” he said, saying they apply in circumstances where the issue is not employment, which would otherwise be regulated by the Labor Department’s Equal Opportunity Commission.

Rather, the regulations are relevant to whether an organization is qualified to participate in a federal program and apply to applicants to nursing or medical schools and to hospital privileges, Doerflinger said.

Before a 1973 statute protecting applicants to medical school was passed, a congressional study found that medical students were being refused entry to medical school, Doerflinger told CNA.

Naming another threat to the freedom of conscience, he also referred to a recent case in Alaska where the state Supreme Court told a community hospital it was not allowed to have a policy against doing elective abortions.

“The court interpreted the Alaska constitution as providing right to abortion that is not only a right to be let alone, but a right to an entitlement,” declaring that everyone has an obligation to provide access to an abortion.

Explaining that a state legislative effort to overturn the decision failed by one vote, he reported the hospital was forced to provide access to its facilities for the local late-term abortionist.

General ignorance about legal rights and duties to protect conscience is another justification for the proposed regulations, Doerflinger said.

“A lot of people just don’t know these protections are out there, and they’re not respecting them.”

He cited a recent American College of Gynecologists and Obstetricians (ACOG) document on the limits of conscientious objection. The document claimed OB/GYNs should consider themselves ethically obligated to provide or refer abortions and should locate their practices near abortion clinics so their patients have easier access.

“The fear among a lot of pro-life OB/GYNs was that ACOG’s ethics standards get worked into the board certification requirements for OB/GYNs to have hospital privileges. So this is very frightening. You could end up being kicked out of hospitals because you don’t subscribe to this ethics committee’s view.”

“That got the attention of the Secretary of HHS,” Doerflinger said, reporting that the secretary wrote to ACOG to inform them their ethical standards ran counter to the conscience protection policies of the federal government.

“This helped him realize that there is a need for people to know more about what is in the law. These regulations clarify what the protection is, and give them a place to go, the HHS Office of Civil Rights, if they are being discriminated against.”

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The regulations also help health programs certify to the government that they understand and respect conscience protections rights.

“The regulation doesn’t create any new rights, they’re just being ignored by some,” he stressed.

CNA asked Doerflinger to respond to the argument that conscience protection regulations force the beliefs of pharmacists or doctors on their patients.

In fact, he argued, the regulations “keep the government from forcing its preferences upon doctors.”

“Most of these statutory protections basically have to do with whether the government can go after you because you’re pro-life. It doesn’t allow the physician to do anything to his patients, it’s just that nobody can force the physician to be involved in actions which violate his conscience. It leaves everybody’s conscience free.”

“If you go to a hospital, every hospital there is, there is something people might want that it does not provide. There is a little-known fact in this debate that over 80 percent of hospitals do not do abortions as part of their regular practice.

“If I go to hospital and they say ‘we don’t do that here,’ that doesn’t force me to do anything. I can go someplace else.

“Hospitals refrain from providing services for all sorts of reasons far less serious than moral or religious conviction,” he added, explaining they have decided some services are not cost effective.

Alluding to a popular argument, he noted the bumper sticker which reads: “Don’t want abortion? Don’t have one!”

“Why doesn’t that work the other way around? ‘In favor of abortion? You do them'!"

“Don’t make us do them,” Doerflinger said.