ACLU files lawsuit against conscience protection rules

Jan 17, 2009 / 00:15 am

New conscience protection regulations from the U.S. Department of Health and Human Services (HHS) have been challenged in a new federal lawsuit filed on Friday by the American Civil Liberties Union (ACLU).

The HHS announced the rule change on December 18. The new rule reportedly clarifies the rights of health care providers to decline to participate in services to which they object in conscience. The rule will help protect those individuals and institutions in the medical field who object to abortion.

Acting on behalf of the National Family Planning & Reproductive Health Association (NFPRHA), the ACLU filed a lawsuit in federal district court in the District of Connecticut. According to the ACLU, the suit argues that the rule significantly undermines access to essential family planning, reproductive and other health care services and information.

The rule “expressly permits a broad range of health care workers and facilities to refuse to provide services, information, and counseling, potentially even in emergency situations,” the ACLU suit claims.

The group also argues that the rule fails to require providers who have conscientious objections to notify their employers or their patients of their objections.

"For years, federal law has carefully balanced protections for individual religious liberty and patients' access to reproductive health care," said Jennifer Dalven, Deputy Director of the ACLU Reproductive Freedom Project. "The Bush rule takes patients' health needs out of the equation. We are asking the court to restore the balance."

"The Bush administration pushed through this rule as its parting shot against women's health," argued Mary Jane Gallagher, NFPRHA President & CEO. "This rule threatens access to contraception and leaves patients with few protections, especially low-income and uninsured women who rely on federally funded health centers for care."

The Connecticut Attorney General's Office and Planned Parenthood Federation of America with Planned Parenthood of Connecticut have also filed separate legal challenges to the HHS rule.

The NFPRHA reportedly represents “dedicated family planning providers” including private providers and state, county and local health departments.

HHS Secretary Mike Leavitt explained the rule’s necessity in a December HHS announcement, saying:

"Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience… This rule protects the right of medical providers to care for their patients in accord with their conscience."

The U.S. Conference of Catholic Bishops and the Catholic Medical Association both support the regulation.

On Friday CNA spoke about the HHS rules with Father Thomas Berg, LC, Executive Director of the Westchester Institute for Ethics and the Human Person.

Fr. Berg said that in his understanding, the HHS rule does “nothing more than to give force to the previous rules that were already on the books, essentially enforcing regulations that should have been in force. Unfortunately, our culture coaxes us into a practice of not honoring the right to exercise conscience in health care.

“We are being coaxed into a culture that allows new pressures on Catholic health care workers to comply with practices and services that are contrary to their conscience,” he said.

“The right to conscience, the right to follow conscience in healthcare is a bedrock, a foundational issue in the practice of medicine. Healthcare professionals must exercise fidelity to their conscience’s determination every day,” Fr. Berg stressed.

“There is no reason why a certain portion of the healthcare profession should be constrained in their exercise of conscience by these kinds of cultural pressures,” he told CNA in a Friday phone interview.

Fr. Berg also authors the CNA column “With Good Reason.” In his December 9, 2008 column he also wrote about the HHS rules and the nature of conscience in medical ethics.

 “The outright denial of free exercise of conscience in the healthcare field undermines the very practice of medicine as we know it.  In the scenario where conscience rights are not protected, health care workers have no recourse; violation of their conscience is not a temporary limitation, but a shocking desecration of their most deeply held beliefs and moral convictions, and of the very virtue of justice on which our democracy stands,” he wrote.

In his Friday remarks to CNA, Fr. Berg said situations which depict people being totally denied medical services are implausible.

“In our culture today, that’s simply a non-argument.”

He mentioned the case of a Catholic hospital that does not want to administer ‘Plan B’ as part of their rape protocol. Should any woman come into the emergency room requesting such treatment, he said, “All she has to do is go down to the local pharmacy and buy Plan B.”

Another argument frequently raised by the ACLU’s Reproductive Freedom Project is the distinction between individual and institutional rights of conscience. The project’s 2002 report “Religious Refusals and Reproductive Rights” advocated that individual conscience rights be emphasized and institutional rights minimized.

Fr. Berg questioned the extreme distinction between the two.

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“In practice, that hard and fast distinction doesn’t work,” he argued. “It’s not the proper paradigm in a Catholic institution where personal exercise or personal set of values and institutional set of values and practices really are meant to be one and the same.”

“There’s meant to be kind of a communion of thought and practice, such that this hard and fast distinction falls to the wayside.

“Ideally, in the case of the Catholic health care worker, their conscience is being informed by the institution of the Church.”