Does an Illinois bill threaten doctors' conscience rights? Depends on whom you ask

Springfield, Ill., May 29, 2015 / 14:13 pm

An Illinois bill that some say threatens the conscience rights of medical providers is currently under consideration in the state's general assembly.

Catholics and pro-lifers are divided among themselves over the implications of SB 1564 for the conscience rights of medical providers.

While the state's Catholic Conference is neutral on the bill, the Christian legal group Alliance Defending Freedom states that it "would force medical facilities and physicians who conscientiously object to involvement in abortions (and other procedures) to refer for, make arrangements for someone else to perform, or arrange referral information that lists willing providers, for abortions."

The Health Care Right of Conscience Act would affect all medical providers in the state, including Catholic hospitals and pro-life pregnancy centers. Originally, it was invoked in court to uphold the rights of pharmacists not to sell birth control to which they morally object.

However, a recent push by the state's ACLU to "reform" the bill resulted in an amended version staunchly opposed by the state's Catholic Conference. That version clearly mandated that all medical providers who, out of conscience, will not perform services – such as abortion and sterilization – must refer patients to other providers of that service.

This "could constitute a direct material cooperation with the objected to service," the conference stated at the time.

Then, in an April 16 statement, the conference claimed to have reached a compromise with lawmakers: that the law does not require medical providers to refer for abortions, but instead maintains the status quo for medical providers – they could give a list of providers in the area where "maybe" one could provide what the patient was looking for.

According to the National Catholic Register, while neither pro-life groups nor the Illinois bishops' conference "likes the bill … the Catholic Conference of Illinois has declared its neutrality as a consequence of negotiations that brought about changes it believes are acceptable but that pro-life groups say are insufficient."

Catholic ethicists and hospital lawyers participated in the compromise, the conference said, shortly before the bill passed the state senate.

The National Catholic Register reported that a spokesman for the Illinois Catholic Conference "explained that they would rather see no changes to the existing law but had to make the best of the political reality" in the state.

"What we did is negotiate the bill to a point where our ethicists and lawyers said, 'This is acceptable … [and] reflects what is in Catholic health care now," the spokesman said.

However, heads of the Catholic Medical Association Illinois Guilds are not convinced that the bill establishes sufficient conscience protections for physicians. In a May 10 statement they expressed grave concern that the bill "violates the sacred life-affirming calling of medical practitioners by forcing them to provide information to aid killing."

According to their statement, language in the bill still mandates that providers give information of places they are reasonably sure provides the service to which they object in conscience.

The bill passed the Illinois state senate but has not yet passed the general assembly, which could vote on it soon.

Lawmakers are hesitant to support a bill that opponents say takes away their right to choose a pro-life physician, said Matthew Bowman, senior counsel at Alliance Defending Freedom. The legal group plans to fight the bill if it is signed into law.

"This is an attack on women's choice," Bowman told CNA, because women will no longer be able to have a pro-life doctor in the state who objects in good conscience to having to refer for abortions.

In a fact sheet on the bill, the ACLU says that providers must give "either a referral or transfer, or written information about where the patient may be able to get the treatment they need."

Both Americans United for Life and Robert George, a professor of jurisprudence at Princeton, have voiced objection to the bill.

So why are some pro-lifers opposing the bill, while others find it acceptable, though not ideal? Is the devil in the details?

The National Catholic Bioethics Center has spoken about the issue, though not specifically referring to the bill itself.

A moral distinction must be made between a "referral" and a "transfer of care," they explained. When a provider refers a patient to another provider for a morally-objectionable service, that is "formal cooperation" with evil, even if the provider does not intend for the patient to receive the service.

"The objector implicitly wills the requestor's accomplishment of the evil act," the center explained of formal cooperation with an evil act.

The center gave two examples of formal cooperation: a hospital physician giving a patient a list of gynecologists who prescribe contraceptives, and a Catholic hospital informing a patient of other places "that it knows or believes will perform abortions."

However, there is a morally licit avenue for Catholic hospitals and physicians threatened by laws like SB 1564, they added.

The provider must make every attempt to dissuade the patient from an evil practice like abortion or sterilization. However, if the patient insists on the action, they are still "an independent moral agent" with free will.

So in such a case the provider can provide them a "transfer of care" to another provider that the patient wants, "without stating where the patient might go to receive the immoral procedure or otherwise directing the patient to it."

The provider can, in good conscience, even provide a list of medical providers in the area, without specifying whether or not they offer the morally-objectionable practice the patient wants – but the list must include providers who do not offer that practice.

The Illinois Catholic Conference believes the bill satisfies moral concerns, as their director of government relations explained to the National Catholic Register. Now providers must only do "what they've always done."

That procedure, under the most recent version of the bill, is to "counsel against the objectionable service, tell the patient what the problems are with it, but if the patient continues to insist on it, to say, 'Look, we don't do that here; here is a list of medical providers: Maybe one of them can help you.'"

For pro-life groups who still insist on fighting the bill, they may face a court date if it becomes law.

Regarding their legal recourse, Illinois does have a law similar to the Religious Freedom Restoration Act, Bowman acknowledged, which could be invoked to protect pro-life doctors. Under such a law, the government in infringing upon a person's religious freedom would have to establish a compelling interest that would justify the substantial burden upon one's religious practice.

Recently Illinois pharmacists won a years-long case in the state appeals court after they refused to provide customers with contraceptives. Then-Governor Rod Blagojevich had issued a mandate in 2005 that pharmacies fill prescriptions for emergency contraceptives "without delay."

The pharmacists fought the mandate in court, invoking their First Amendment rights, their rights under the state's Religious Freedom Restoration Act, and the Health Care Right of Conscience Act.

The ACLU later launched an initiative to "reform" the Right of Conscience Act, stating that "everyone in Illinois has the right to receive health care and information that is not restricted by the religious beliefs of others."