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Accessories by force

Healthcare | Moves against conscience protections threaten more than pro-life doctors and pharmacists

Issue: "Crackdown," July 18, 2009

The year is 1971. MacArthur Hill has the dream. Again. He is ­standing in front of a jury, holding a live baby in his arms, staring down into a bucket of water, deliberating: Should he, or should he not, drown the child? The former obstetrician/abortionist says about his practice, "I knew that what I was doing was wrong. My body just instinctively knew. Clearly, conscience was involved here."

The issue of conscience has come to the fore ever since President Barack Obama took office with a pledge to eliminate pro-life measures passed by state legislatures. His chief vehicle for doing that: the Freedom of Choice Act (FOCA), which Donna Harrison, president of the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), calls a "sweeping elimination of conscience, because it establishes abortion as a fundamental right, like free speech, and puts abortion under anti-discrimination law."

But most doctors I interviewed said that FOCA, being so extreme, is not currently the main threat. They fear more the subtle loss of conscience protections that could pave the way for more drastic measures, like FOCA, later on. They are paying attention to President Obama's announced plan to rescind the Bush administration's Provider Conscience Regulations, which protect health care professionals who are morally opposed to certain medical procedures.

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Such conscience protection goes back three decades to laws passed during the 1970s that forbid discrimination against health care personnel for their religious or moral objections to procedures such as abortion. Congress in 1996 added Public Health Service Act 245, which prohibits discrimination against institutions or individuals who refuse to perform, refer for, or be trained in objectionable procedures such as abortion. The Hyde/Weldon Conscience Protection Amendment enacted in 2004 provided additional protection for those who do not want to perform, pay for, provide insurance coverage for, or refer for abortions.

The problem, according to Dr. David Stevens, CEO of the Christian Medical and Dental Associations (CMDA), is that these laws provide no venue for physicians to file claims of discrimination, nor are mechanisms in place to discipline health care institutions that discriminate against conscience: "It's like tomorrow the government announces they have speeding laws, but won't enforce them." According to Stevens, the Bush administration's Provider Conscience Regulations provided the "teeth" needed to protect health care professionals.

The Bush regulation specifies that individuals have the right to be conscientious objectors to abortion and other acts they deem immoral. The regulation threatens health care institutions with loss of federal funding should they force conscience violation. Crucially, the regulation establishes the Office of Civil Rights of the Department of Health and Human Services as the entity for health care providers to complain to, should they experience any incidence of discrimination.

But soon after Obama moved into the White House, his administration signaled its intent to undo Bush's regulation. A 30-day public comment period that saw tens of thousands of pleas to keep the protections intact ended in April, and since then pro-life medical professionals have been bracing for the official demise of the conscience protection.

This regulation became important because of two policies of medical groups that have made their peace with abortion. In 2007 the American College of Obstetrics and Gynecology (ACOG) issued its Opinion No. 385, "The Limits of Conscientious Refusal in Reproductive Medicine." The opinion states that if health care providers cannot, in good conscience, perform certain medical procedures, they must refer a patient to someone who does-even if abetting an abortion in that way is abhorrent to an obstetrician called to bring life into the world, not aid in its killing.

Once ACOG issued its opinion, the American Board of Obstetrics and Gynecology (ABOG) issued a follow-up policy publication that linked compliance with ACOG to board certification. Between ABOG and ACOG, pro-life physicians were under pressure to become cogs in the abortion machinery. Former Health and Human Services Secretary Michael Leavitt criticized that pressure when he announced last year the Bush administration's regulation: "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."

Although abortion is the main and most obvious battlefront, other conscience issues are also involved. Freedom2Care, an umbrella group of 45 organizations, lists on its website more than 50 instances of discrimination against anesthesiologists, medical students, nurses, hospital administrators, EMTs, secretaries, Catholic hospitals, and pharmacists. Whether it is refusing to anesthetize a woman for an abortion, refusing to be trained to perform abortions, assisting in abortions, dispensing drugs deemed harmful to life, or artificially inseminating a woman in a lesbian relationship, it seems an increasing number of professionals may be forced to choose between their convictions and their careers.

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