The End of the “Conscience Rule”
It appears that President Obama is going to repeal a rule that protects healthcare workers who refuse to administer services or prescriptions that go against their beliefs. The Department of Health and Human Services has begun the process to formally rescind the regulation. Many anti-abortion activists claim the “conscience rule” is vital to limiting their participation in actions set against their beliefs. The regulation extended “protection of conscience” to a wider range of activities than federal law allowed, such as dispensing contraceptive devices. Because the Bush administration could not have passed this protection into law through Congress, it had to use the rules process, which can be reversed by any administration.
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Did you notice the argument that it is “too broad” is exactly the same kind of argument used against conscience rules for soldiers?
Soldiers due have the right to refuse unlawful orders. The problems becomes if they can’t prove that the order was unlawful. Otherwise soldiers are limited for conscience exemptions for lawful orders. There are valid reasons for this. Those reasons don’t apply to medical personnel.
The question is not about “unlawful orders.” The question is of a soldier who finds an order goes against their conscience. Catholics have argued that this right should be given to soldiers, but the response is that it would be “too broad a right.” Again the same argument, the same issue: conscience.
You do give up some when you join the military. There is a world of difference between soldiers needing to obey orders that are legitimate and medical personnel who do not have to obey orders. Order and discipline required by a military unit are different from what is required on a hospital ward.
If an order truly violated a military member’s conscience, he could claim that the order is unjust. An officer ordering a soldier to shoot an unarmed prisoner for example. It would work so well if a soldier said that an order to attack a heavily fortified hill was against his conscience. Then one has the case where a soldier thinks a war is unjust. He can disobey orders to to war and suffer the consequences. That would be the Christian thing to do.
Don’t think we need to start saying to medical personnel “Take part in an abortion or lose your job.” We don’t need to start making that the Christian thing to do.
Considering the fact that the new regulation took effect on January 20, 2009, and claims only to reinforce existing laws, I don’t see how its repeal can be a big deal.
Correct me if I’m wrong, but isn’t there still a law that allows doctors to refuse to perform abortions? As I understood it, the repeal of this new rule will compel them to provide contraceptives, but not abortion. I’m not defending Obama’s action at all, just trying to inform myself as to what exactly this means.
YES WE CAN, YES WE CAN!
Let’s see:
Funding for international abortions – check
Repealing the ability for a medical professional to refuse contraception or murder – Check
Appt. of a super pro-abortion health secretary – Check
Sounds like Obama is really a friend to Catholics on this issue…
Soldiers and Conscience
Funding for international abortions – check
The repeal of the Mexico Policy did is not equivalent to funding abortions. International organizations that will now receive money that would not have while the policy was in effect may not use the money for abortions. (For those who are going to say money is fungible, go ahead. It’s not preposterous, but it is weak.)
Repealing the ability for a medical professional to refuse contraception or murder – Check
This is preposterous. How many medical professionals were forced to perform abortions before this regulation went into effect in January 2009? There are already federal laws that prevent anyone from being “forced” to perform abortions.
Also note that this regulation applied only to entities accepting federal funding. If it were the case (and it never has been, and almost certainly never will be) that it comes down to a choice between performing abortions and losing federal funds, in what sense is that “force”?
The coverage of this issue is causing needless confusion. Obama is not repealing, abolishing, revoking or doing anything drastic to health care workers’ “right of conscience.” He is proposing to rescind a regulation that was adopted at the eleventh hour of the Bush admin. that did nothing more than require that recipients of federal funding certify their compliance with existing federal statutes that recognize a right of conscientious objection when it comes to medical procedures — any medical procedures, not just abortions — to which they have a moral or ethical objection. The Bush reg. did not create the right of conscience; Obama’s rescinding of it will not abolish the right of conscience. Health care workers have for many decades had their right to conscientiously object (within certain fairly common sense limits)protected under the Civil Rights of Act of 1964),analogous state civil rights laws, as well as conscience laws on the books in 44 states. None of this was particularly enhanced by the Bush regulation and none of it will be particularly hurt by Obama’s proposed action.
In fact, this whole thing is a perfect example of the calculated cynicism of both faces of our one-party system. Hudge (Bush) proclaimed what a great thing it was doing for the right-to-life when it enacted the regulation; now Gudge (Obama)proclaims its commitment to the right-to-choose. The reality is nothing is really changing.
The hysteria I’m reading about hospitals being forced to close, people having to change their professions,civil disobedience, etc. is great for fund raising and whipping up the troops, but is has no basis in reality. I know this because I have been representing conscientious objectors in health care for more than a decade. If Obama’s loyalists think their man’s proposal will end conscience-protecting litigation, they’re sadly mistaken. If prolifers think this is the end, they need to step back and learn more about what really is — and isn’t — happening
z”In fact, this whole thing is a perfect example of the calculated cynicism of both faces of our one-party system. Hudge (Bush) proclaimed what a great thing it was doing for the right-to-life when it enacted the regulation; now Gudge (Obama)proclaims its commitment to the right-to-choose. The reality is nothing is really changing.”
sarfield if this order is nothing why is Obama appelaing it
Good grief can we as Catholics agree this is a good thing or do you have a argument that repealing it is a in line with Catholic thought
Catholic Hospitals if they take any Federal funding will be required to do abortions.
jh: Obama is trying to rescind the regulation to please his pro-abortion constituency. I’m afraid I didn’t make myself very clear. I’m 100% in favor of the regulation and not at all happy that Obama wants to do away with it. My point, however, was that the regulation itself merely added one possible enforcement tool to already existing laws — taking away this enforcement tool will NOT repeal those laws.
Mickey Jackson: Yes, other laws exist that protect the right of health care workers to refuse to participate in abortions. No,the repeal of the rule will NOT require anyone to provide contraceptives.
Catholic Hospitals if they take any Federal funding will be required to do abortions.
Harry,
Can you cite anything to back up this assertion? This new regulation has been in effect only since January 20 of this year. Were Catholic hospitals that accepted federal funds forced to perform abortions prior to this regulation?
What force will be used? Will the FBI come into the hospitals, hold a gun to doctors’ heads, and say, “Perform abortions”?
I’ve also found myself questioning why, if President Bush was such a pro-life hero, and this regulation was so important to the pro-life cause, he waited until a few weeks before the end of his term to enact it, knowing full well that it could and probably would be repealed by the next administration. Why didn’t he push for it to be enshrined in law during the six years when he had a Republican majority in Congress? I’m sure they would have complied had he asked. Though I didn’t vote for Obama and certainly think it’s a folly to somehow claim that his position on human life can be reconciled with Catholic teaching (and basic common sense), I feel that we would have simply gotten more of the same under McCain: symbolic “victories” that look great in glossy church parking-lot flyers but do nothing to address the real issue. Members of the pro-life movement have been taken for suckers by the GOP, and we’ve bought it hook, line, and sinker.
In any event, given that it sounds like Sarsfield knows what he’s talking about when it comes to protecting conscience rights, I think his comment says all that needs to be said. Let’s save our energy for efforts to persuade pro-choice politicians, judges, and most importantly (and most easily) voters that the right to life makes legal and moral sense (personally, I think that the “personhood movement” is a great new and creative way to go about this); and to, in the meantime, enact meaningful legislation to address the social issues that lead to abortion.
Or, perhaps more urgently, ensuring that his plan for universal health care does not include funding for abortion. Perhaps we should be talking to pro-life and moderate pro-choice representatives about attaching the Pregnant Women Support Act to the current budget (since it looks like the plan will be enacted step-by-step via the budget process, not in one big bill).
Mickey: I couldn’t agree with you more. The Bush administration showed no interest in this issue until it was too late to make any practical difference. The pro-life movement, in my opinion, made and continues to make a huge mistake by aligning itself too much with one party. Far better to try to have an influence in both. Let’s face it: consistent Catholics must hold their noses with both hands when voting for candidates in either of the major parties.
Don’t get me wrong: I’m glad that partial-birth abortion was banned, but that didn’t save any lives; it only required doctors to use a different, slightly (though not much) less gruesome procedure. I’m glad that my tax dollars weren’t used to fund embryonic stem cell research, but the “pro-life” McCain wanted to repeal that regulation. I want to see Roe v. Wade overturned, but I want it to be replaced by a universal legal affirmation of the rights of the unborn, not a piecemeal state-by-state decision process that will ultimately strengthen, not weaken, the legal right to abortion. Our willingness to settle for anything less, and to undermine the consistency of our advocacy in favor of ALL human life, has been very nearly fatal to the pro-life movement. For all of these reasons, it is quite simply laughable to suggest that the Republican Party is, to use the words of Father Pavone in justifying a hypothetical vote for Giuliani, “the pro-life party.” Bush and McCain were not pro-choice; they just wanted to leave the “choice” to the states, not the individual. In this they were no better than the legions of “personally-opposed-but” Democrats in Congress.
“Bush and McCain were not pro-choice; they just wanted to leave the “choice” to the states, not the individual. In this they were no better than the legions of “personally-opposed-but” Democrats in Congress.”
Sigh
I think this argument was defeated quite aptly in all place the America Magazine blog.
“The pro-life movement, in my opinion, made and continues to make a huge mistake by aligning itself too much with one party. Far better to try to have an influence in both. Let’s face it: consistent Catholics must hold their noses with both hands when voting for candidates in either of the major parties.”
THe Democrat party refuses for the most part to listen to pro life concerns.
The Democrat party [sic] refuses for the most part to listen to pro life concerns.
Do they refuse to listen, or do pro-lifers just not talk to them enough?
According to David Nickol, nothing Obama does in any way supports abortion nor undermines the Church’s teaching on the subject. When he signs the FOCA, I’m sure ol’ Davey will be here to tell us that, in reality, the FOCA has nothing to do with abortion.
Enjoy your 30 pieces of silver.
Alex, since you bring up Judas – Republicans have hugely discredited the pro-life cause, while claiming to be its champions (“Do you betray me with a kiss?”)
I honestly wish people would stop raising the specter of FOCA. It hasn’t even been re-introduced. If and when it is, and if and when it ever gets a committee hearing (it never has, even when Clinton was President and had a Democratic majority), and if and when it gets enough votes to survive a filibuster (it won’t), then we can worry about it. The near-hysteria that has been generated over a nonexistent law has only served to further undermine the credibility of the pro-life movement, as evidenced by the extremely condescending but not-unreasonable article in Time magazine a few weeks back.
he near-hysteria that has been generated over a nonexistent law has only served to further undermine the credibility of the pro-life movement
And electing Obama, who has undone ANY progress on the abortion issue within weeks of taking office is helping the credibility?
According to David Nickol, nothing Obama does in any way supports abortion nor undermines the Church’s teaching on the subject. When he signs the FOCA, I’m sure ol’ Davey will be here to tell us that, in reality, the FOCA has nothing to do with abortion.
Enjoy your 30 pieces of silver.
alex,
Are you comparing me to Judas?
I would never deny that Obama is a very strong proponent of the a woman’s right to choose an abortion, and that he (and Biden, and Pelosi) are in opposition to the teachings of the Catholic Church. All I am asking is for people to be accurate. There is enough from the pro-choice Catholic viewpoint to criticize Obama with. Distorting the truth is not necessary.
For example, with the repeal of the Mexico City Policy, government funds may go to International Planned Parenthood. However, those funds may not be used for abortion. That is exactly the way it has worked for decades with Planned Parenthood in the United States, which has received hundreds of millions of dollars under both Democratic and Republican presidents and Democratic and Republican congresses. So it is simply not accurate to say that Obama is funding international abortions.
Also, it’s just preposterous to say that in undoing the Provider Conscience Regulation, Obama is repealing the right of medical professionals to refuse murder. It is patently absurd. Were medical professionals forced to commit murder prior to January 20, 2009, when the regulation went into effect? The regulation claimed to be a mechanism for certifying the enforcement of the Church Amendment, the Coats-Snowe Amendment to the Public Health Services Act, and the Weldon Amendment. Have any of those been repealed?
I understand why many pro-lifers are upset that Obama got elected. What I don’t understand is why they can’t stick to the facts. Some seem to feel that he is so horrible, it doesn’t matter whether what you say about him is true or false, just so it’s an accusation of “baby killing.”
If anyone has any evidence at all to support statements that because the Provider Conscience Regulation is being withdrawn, Catholic hospitals will be forced to perform abortions, or Catholic doctors will be forced to perform abortions, let’s see it.
Tim: what progress are you talking about? If what others are saying is correct, this rule was nothing more than a symbolic gesture, on par with the lifting of environmental restrictions and workplace safety rules, meant to mollify those who had given Mr. Bush their unconditional support. While such support may have been justified among polluters and transnational mega-corporations, I just don’t see any evidence that he deserved any of the adulation that pro-lifers gave him. And people accuse Democrats of having Messianic visions of their politicians…
I am reminded of an allegory about a man who has a loaf of bread. Someone comes along and asks for half of it. He gives it to them, thinking he’ll still have half left for himself. Then someone else comes along and asks for half of what’s left, and he gives it to them, thinking he’ll still have half, and so on ad infinitum until he has nothing left. This is the state the pro-life movement is currently in. We’ve turned a blind eye to the evil policies advanced by the GOP, and become steadily more tolerant of Republicans whose views on the murder of the unborn have become steadily more lenient, because they keep pointing to the nice words that their platform says about the right to life. And what have we gotten? A ban on partial-birth abortion that sounds good in press releases and that saves exactly zero lives per year; a ban on federal funding of embryonic stem cell research that this year’s Republican candidate wanted to overturn (with no opposition from his Party); and a “Mexico City policy” that was so riddled with loopholes that it was laughable.
I am not advocating that we support Democrats. But I will not apologize for my belief that the pro-life movement’s unyielding and unconditional support of the Republican Party has all but destroyed its moral and intellectual credibility. We need our own movement, one completely separate from any political party, that advocates the protection of human life at all stages and that does so in terms that will convince progressives that this movement is not about imposing our religious beliefs on anyone, but is rather about the fundamental human rights guaranteed under our Constitution. In the meantime, I refuse to lend my support or my vote to any party that advocates policies that my conscience tells me are intrinsically evil, or that uses the slaughter of infants as political fodder while doing nothing to stop it.
Matt,
I’ve got no love for the Republican Party, either. I think they have (largely) paid lip service to the pro-life movement. I also think they failed miserably when it came to torture and are failing miserably in fighting against embryonic stem cell research.
I knew when I clicked the link that I would find none of the usual pro-Obama crew admitting that, maybe, just this once, their guy was doing something he shouldn’t do.
I knew as an absolute certainty that repealing these provisions would be excused on the grounds that they were only recently formally instituted.
I did not expect, but am not surprised to see, that the subject was quickly changed to conscience exceptions for soldiers, as though medical personnel should not have conscience provisions unless soldiers do.
I was a bit surprised to see some excuse-making for the repeal of the Mexico-City Policy, given that, as Bishop Martino has pointed out, money to fund international organizations that promote abortion will be taken from other organizations that do NOT promote abortion.
Bush, if he actually approved of torture, did so in a covert manner. Obama’s approval of abortion, infanticide and euthanasia are overt, and are an integral part of his platform and philosophy.
When are you Obama supporters going to start trying persuade pro-abort Democrats to become pro-life, instead of just carrying their water?
Paul
If you note, I was calling out the error involved with Obama’s position to be the same in relation to other matters of conscience. The Church’s position is applicable to both, and if you support the objection in one, you should the other. If you do not, something is wrong. In that turn, it is taking this issue, and pointing to the cultural problem which needs to be addressed. Nothing else.
If what others are saying is correct, this rule was nothing more than a symbolic gesture,
Are you saying symbols are not important? What kind of message does it send to tear down a “symbol” of protecting someone’s right to refuse to murder another under the guise of a medical procedure?
How many “symbolic” facets are there in Catholic culture?
Isn’t the crucifix a “symbol”???
TeutonicTim,
Thanks for all your comments. It’s amazing how some Catholics try to defend Obama on this issue.
Symbols are fine, unless they are a substitute for real action, which this regulation apparently was not. There are already laws that allow doctors to refuse to provide abortion and, from the sound of it, contraception as well.
There are already laws that allow doctors to refuse to provide abortion and, from the sound of it, contraception as well.
Indeed? Do they apply to nurses and pharmacists as well? My understanding is that they do not.
Are you saying symbols are not important? What kind of message does it send to tear down a “symbol” of protecting someone’s right to refuse to murder another under the guise of a medical procedure?
It is not the business of regulatory agencies to perform symbolic actions. They are supposed to promulgate regulations. I think almost all the opponents of the regulation would agree that it was far more than symbolic. It took existing protections of the rights of conscience (in the Church Amendment, the Coats-Snowe Amendment to the Public Health Services Act, and the Weldon Amendment), and interpreted them in ways that they had not been interpreted in decades of court cases.
The fact few are grasping here is that no Catholic hospital has ever been forced to perform abortions, and individual has ever been forced to perform abortions, and the repeal of this regulation will change that.
There are matters of fact involved here, and some choose to ignore them in order to demonize Obama.
As I said before . . .
If anyone has any evidence at all to support statements that because the Provider Conscience Regulation is being withdrawn, Catholic hospitals will be forced to perform abortions, or Catholic doctors will be forced to perform abortions, let’s see it.
Indeed? Do they apply to nurses and pharmacists as well? My understanding is that they do not.
Nurses, under current law, cannot be forced to perform abortions.
Contraception is quite a different case. There are already states that protect some pharmacists from, say, being required to dispense the morning-after pill, and other states that require pharmacists to dispense the morning-after pill.
Of course, conservatives generally prefer matters to be left to the states, but I am guessing that many make an exception and want the federal government to make some kind of comprehensive rule about what pharmacists may be required to do and may refuse to do.
Remember that the Provider Conscience Regulation was applicable only to entities receiving federal funding. The list was not small, and included a large number of hospitals, pharmacies, and doctors’ offices. But nevertheless it did not cover everyone.
So David, I’m not getting your point Are you saying that the repeal of this (admittedly imperfect and belated) regulation is a Good Thing? Or a Bad Thing?
Paul,
I haven’t given an opinion. I am saying that the repeal of this regulation will not force hospitals or individuals to perform abortions in violation of their conscience.
I personally believe the repeal is a good thing. (We have already discussed the regulation itself at length on Vox-Nova, for example here.)
There is of course a legitimate debate on the rights of conscience of health-care providers over against the rights of patients to receive the kind of medical care they seek should reasonably expect to receive. There may be tough cases, such as emergency contraception following rape. However, this regulation was entirely about the rights of providers to refuse, and was silent on the rights of patients.
We can argue the merits of the regulation again if anyone wants to, but the only point I have intended to make is that the repeal of the regulation will in no way force hospitals or individuals to perform abortions. The enactment of the regulation didn’t change the law on the right to refuse to participate in abortion, and the repeal of the regulation didn’t change it, either.
I personally believe the repeal is a good thing.
Thanks for a clear answer.
Regarding conscience rules, should Muslim supermarket workers be allowed to refuse to stock shelves with alcoholic products or refuse ring up alcoholic products at the cash register? See this story.
Should Muslim supermarket workers be allowed to refuse to scan certain products (like a frozen pepperoni pizza, which contains pork) and insist that the customer or another worker do it for them? See this story.
Is this fair?
To what degree must employers and society at large accommodate the conscience or religious rules of individuals, as opposed to the individuals seeking out situations where they are not exposed to prohibited behavior. For example, if you own a shoe store, would you feel obliged to hire an Orthodox Jewish shoe salesman who would not deal with women customers unless given assurances that they were not menstruating? Would it be discrimination not to hire him? Or is it up to Orthodox Jewish men to arrange their work lives in such a way that they do not have to risk touching menstruating women?
It is not the business of regulatory agencies to perform symbolic actions.
Then what is the business of the same regulatory agency sending the symbolic gesture of repealing the symbolic rule we’re talking about.
Don’t tell me you’re suddenly for small government?
Then what is the business of the same regulatory agency sending the symbolic gesture of repealing the symbolic rule we’re talking about.
Teutonic Tim,
I said in my message:
In other words, I disagree that it was symbolic. That is why the American Medical Association, the American Hospital Association, the American College of Obstetrics and Gynecology, the Unitarian Universalist Association of Congregations, the United Methodist Church, 14 state attorneys general, 7 governors, 150 congressional representatives, and the Equal Employment Opportunity Commission Office of Legal Counsel all opposed it.
Obama is not having it withdrawn because it is symbolic and he doesn’t like the symbolism. He is having it withdrawn because it is a bad regulation.
Don’t tell me you’re suddenly for small government?
People who claim to be for small government, when they get into office, give us big government and huge deficits. Never trust anyone who says he is for small government.
hat is why the American Medical Association, the American Hospital Association, the American College of Obstetrics and Gynecology, the Unitarian Universalist Association of Congregations, the United Methodist Church, 14 state attorneys general, 7 governors, 150 congressional representatives, and the Equal Employment Opportunity Commission Office of Legal Counsel all opposed it.
I don’t see any Catholic organizations in this list?
David Nickol wrote:
“It took existing protections of the rights of conscience (in the Church Amendment, the Coats-Snowe Amendment to the Public Health Services Act, and the Weldon Amendment), and interpreted them in ways that they had not been interpreted in decades of court cases.”
What is your basis for this assertion? I know this is a talking point of those opposed to the regulation, but I have seen no evidence of it in the regulation itself. Also, I have read all of the very small number of cases interpreting the three statutes you mention. (Coates-Snowe is barely a decade old, Weldon even less -there simply aren’t “decades of cases . . .”) Not one thing in the regulation alters anything in the holdings of those cases.
I have previously made the point that the Bush regulation was little more than window dressing and have criticized what I see as the cynicism of the Bush people in enacting a fairly toothless measure knowing that Obama would move immediately to undo it. Similarly, Obama’s rescinding of it would not be an honest attempt to deal with a bad law; it’s just more cynical politics on the other side. I think both sides are using this issue to stir up their bases.
This is not to say, of course, that there isn’t a real problem in this country of conscientious health care providers being discriminated against. There is, and the Obama administration’s attitude toward that discrimination (as evidenced by its announced intention to rescind this regulation) does not bode well for the future. It’s distressing to read your adoption of the type of arguments made by the odious Gov. Blagojevich when he erased the conscience rights of pharmacists in Illinois:”what about the Muslim grocery worker?” and that sort of thing, as if we were incapable of making appropriate and balanced distinctions.
It’s distressing to read your adoption of the type of arguments made by the odious Gov. Blagojevich when he erased the conscience rights of pharmacists in Illinois:”what about the Muslim grocery worker?” and that sort of thing, as if we were incapable of making appropriate and balanced distinctions.
Sarsfield,
And it’s distressing that you took this to be an argument, rather than an honest question: To what degree must employers and society at large accommodate the conscience or religious rules of individuals, as opposed to the individuals seeking out situations where they are not exposed to prohibited behavior.
In most of what I have read about Muslim employees in the United States, employers have found ways to get around their religious prohibitions. In the story about taxi drivers, one of the few cases where the authorities “got tough,” the previous penalty for refusing passengers at the airport was to be sent to the end of the line and take your chances with the next passenger that you came up with. That seemed to balance the rights of both passengers and taxi drivers.
I thought it might be more productive to hear thoughts on the general principle than to focus on abortion. Certainly there are jobs that no observant Muslim would take. And certainly there are jobs that no observant Catholic would take. The question is, when is the burden on the person who has self-imposed restrictions, and when is the burden on the employer or society at large.
A Muslim may very well have a right to work in a grocery store if some reasonable accommodation can be made so he or she doesn’t have to handle pork. However, a Muslim can’t expect to work at a kennel and have legal protections from touching dogs.
The whole point is that rights must be balanced, and that is not always easy to do. And the Provider Conscience Regulation was weighted totally in favor of those who wanted to refuse on grounds of conscience, without taking into consideration the rights of employers who would perform the jobs they were hired to do or patients who expect to receive standard and complete medical care.
(Coates-Snowe is barely a decade old, Weldon even less -there simply aren’t “decades of cases . . .”)
Sarsfield,
The Church Amendment was passed in 1973. Moreover, the EEOC objected that the Provider Conscience Regulation overlapped with Title VII of the Civil Rights Act of 1964:
I am going to quote myself here from an earlier thread . . . .
*****
Opponents say that although the regulation is claimed to be a clarification of existing laws, it vastly expands the scope far beyond what congress intended when it created those laws. It overlaps with existing and reinterprets civil rights laws in this area that have been fine-tuned for decades, which is why the EEOC complained. And it conflicts with some existing state laws that define what pharmacists and other healthcare workers may and may not do. It also requires certification, which creates new paperwork, adding new administrative costs for every entity covered by the regulation,
Several articles I have read point out the following:
Hospitals, clinics, and pharmacies could be obligated to hire people who would not do their stated jobs. For example, in the Walgreens drugstore where I fill my prescriptions, it is often not the pharmacists who actually hands over the prescription. Under this new interpretation of the regulation, the clerk who retrieves the prescriptions and rings them up on the cash register would be permitted to decide which ones I could have and which ones I couldn’t. Walgreens could be forced to hire someone who declares in advance that they would not ring up a whole array of drugs and devices (Viagra, AIDS medications, condoms, birth control pills, sexual lubricants, and so on). What you could get at a pharmacy would not merely depend on the pharmacist, but the clerk who was on duty.
Emergency rooms, where the unpredictable occurs all the time, could not be confident that in a life-threatening situation, one of their workers would not invoke the regulation to refuse to do a specific task. Hospitals could not refuse to hire workers who would not comply with patients’ DNR (”do not resuscitate”) wishes. Catholic medical ethics does not require life and suffering to be unnecessarily prolonged by heroic measures, but if you had a loved one dying in the hospital with DNS instructions, whether or not those instructions would be followed could depend on who was on duty at the time.
*****
In addition to the letter from the EEOC linked to above, take a look at this from The American Hospital Association and this from the a href=”http://www.guttmacher.org/media/resources/2008/09/24/GuttmacherInstitute-re-ConscienceRegulation.pdf”>Guttmacher Institute.
David,
There is a grand total of 4 cases in forty-five years interpreting the Church Amendment, none of which would be affected by the Bush regulation in any way. But that’s a minor point.
The concerns raised by the AHA and others are curious because the Church Amendment has always covered people other than those who directly perform morally controversial procedures:
“42 USC 300a-7(d) Individual rights respecting certain requirements contrary to religious beliefs or moral convictions. No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health, Education and Welfare [Secretary of Health and Human Services] if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”
So it has – for forty years – been the law that even those who merely “assist” are meant to be protected. What does “assist” mean? The statute doesn’t tell us.
So why all the fuss over the Bush regulation? I suspect it’s because, for the first time, it would have added a measure of enforceability to the Church Amendment et al. that has been lacking before now. As for the EEOC and its invocation of Title VII, I find that somewhat amusing, having dealt with several EEOC investigators who didn’t even realize that Title VII covered religious discrimination claims beyond the run-of-the-mill requests for time off on the Sabbath. “Fine-tuned?” Hardly. More like hit or miss.
And beware of citing too readily a Republican EEOC legal counsel’s position on this. On its face, Title VII should be an adequate way to deal with such cases in a pluralistic society: “reasonable accommodation” unless it would cause an employer “undue hardship.” But that framework was gutted by a “conservative,” “strict constructionist” Supreme Court majority when it held that “undue hardship” means “anything more than a de minimis cost to the employer.” Got that? Not just “hardship” but “undue hardship” means “trivial.” Subsequent bipartisan efforts in Congress to undo that judicial usurpation – as recently as 2005 in which right-wingers like Kerry and Clinton joined the likes of Santorum and Brownback – have all failed. Bottom line: Title VII, as currently interpreted is great for Big Business and Big Government, but not so great for individual rights.
I would have been impressed if the Obama administration had approached this issue by sincerely attempting to address the admittedly thorny questions that arise in this context. But so far all I’m seeing is the flip side of Bush. Both sides using the sanctity of life/reproductive rights conflict to rouse the base. Not a good start in my opinion.
So it has – for forty years – been the law that even those who merely “assist” are meant to be protected. What does “assist” mean? The statute doesn’t tell us.
Sarsfield,
I am not a lawyer, but from what I have read, one of the main objections to the Provider Conscience Regulation is that it does define “assist in the performance of” and does so more broadly than ever before. From the regulation itself (emphasis added by me):
You’re not talking about the statute (Church Amendment) but, rather, an interpretation by the HHS accompanying the regulation. Probably not much of a practical difference, I admit, since it would be HHS that would be (or would have been) enforcing the regulation. But why shouldn’t those people have protection too as long as their conscientious objection can be “reasonably accommodated” without “undue hardship” to the employer? I agree with Kerry and Clinton that it should be. It’s all about striking a balance in individual situations. I agree that emergency rooms present a different problem but,in most situations, with people of good will trying to find a common ground, accommodation is usually not that hard to accomplish.
But why shouldn’t those people have protection too as long as their conscientious objection can be “reasonably accommodated” without “undue hardship” to the employer?
Sarsfield,
If I understand your position here, we are in agreement. One of the major arguments against the Provider Conscience Regulation was that the provider’s right to refuse appears to be absolute, without any attempt to strike a balance between the rights of providers and the rights of employers or patients.
…without any attempt to strike a balance between the rights of providers and the rights of employers or patients.
Indeed, we mustn’t infringe people’s right to obtain — or profit from — abortion and contraception.
Indeed, we mustn’t infringe people’s right to obtain — or profit from — abortion and contraception.
Paul,
The Provider Conscience Regulation has sections that are not limited to abortion, sterilization, and contraception:
A nurse who was on duty in a hospital and who felt morally obligated to ignore a do-not-resuscitate (DRN) order could call for a patient to be resuscitated even if the DNR order was in perfect accord with Catholic medical ethics and resuscitation would only prolong the patient’s suffering.
A counsellor at a family planning clinic that teaches NFP could refuse to participate in anything having to do with it on the grounds of conscience. On one extreme, some people feel that NFP is cheating God and is itself a form of contraception. On the other extreme, some people believe that NFP is so ineffective that it is wrong to expect women who do not wish to become pregnant to use it. Anyone in a family planning clinic who said NFP was against his or her conscience could refuse to teach it, refer a client to someone who would teach it, or even inform a client that NFP was an option.
In an interesting twist that does involve contraception, Medicaid, which of course is a federally-funded program, covers contraception. However, the Provider Conscience Regulation would allow doctors to refuse to prescribe contraceptives and pharmacists to refuse to fill prescriptions for them. So the Provider Conscience Regulation would allow employees of, say, a hospital-based family planning clinic to refuse to provide contraceptives, thus making the hospital noncompliant with Medicaid regulations.
Also, there are some licit uses of birth control pills for noncontraceptive purposes (for example, the treatment of endometriosis). Would you like pharmacists to refuse to fill prescriptions for all prescriptions for the pill, even the licit ones? Or would you like to give pharmacists the right to inquire why a woman was filling a prescription for the pill? Or for pharmacists who do not object to married people using contraceptives, would you like to see pharmacists ask women filling prescriptions for contraceptives if they are married or not?