Is freedom of conscience at risk?


The Bush Administration has proposed a rule that would deny federal funding to medical facilities that discriminate against employees who choose not to provide services they deem to be morally wrong—such as performing abortions or making abortion referrals.

Unlike rules that ban discrimination on the basis of race, ethnicity, gender, or sexual preferences, this one is called an attack on “choice.” Sen. Patty Murray (D-WA) and Sen. Hillary Clinton (D-NY) objected to the proposed rule.

It is feared that the wording could be expanded to include oral contraceptives or the “morning after” pill (Seattle Times 8/25/08).

U.S. Health and Human Services Secretary Mike Leavitt says the regulation is about abortion, not contraception. But the meaning may depend on what an abortion is. And that depends partly on when pregnancy begins. In 1965, the American College of Obstetrics and Gynecology (ACOG) decreed that pregnancy begins after implantation, thus avoiding the charge that its members were encouraging, if not performing, early-term abortions in prescribing non-barrier contraceptives (PRI Weekly Briefing 8/12/08).

Karen Brauer, president of Pharmacists for Life, expects that members of her group would like to see states lose federal funding if they pass laws forcing pharmacists to fill prescriptions for what they consider to be abortofacients. And Catholic hospitals would like to be freed from requirements that they offer emergency contraception to victims of sexual assault.

Planned Parenthood Action Fund and Political Action delivered 325,000 signatures of protest to Leavitt, but he signified that he planned to go forward with the rule, citing the need to protect medical professionals.

Their right to decline certain actions, including certain types of speech, is a “fundamental freedom: that “every American values,” Leavitt said (Stephanie Simon, Wall St J 8/22/08).

Leavitt believes that that freedom is threatened. On Aug 8, he wrote in the HHS blog: “Several months ago I became aware that certain medical specialty groups were adopting rules which potentially violate a physician’s right to choose whether he or she performs abortion. I wrote to the organizations in question, protesting their actions. Frankly, I found their responses to be dodgy and unsatisfying. I sent another letter, more of the same.”

This weblog notes that the proposed rule is open for comment for 30 days, and provides a link.

ACOG has been heavily criticized for its November 2007 Ethics Committee Opinion entitled “The Limits of Conscientious Refusal in Reproductive Medicine.” In addition to stating that physicians had the duty to refer patients for procedures they themselves were not willing to perform, it wrote: “Physicians with moral or religious objections should either practice in proximity to individuals who do not share their views or ensure that referral processes are in place.”

A newly publicized twist on the question of what an abortion is concerns what ACOG terms a “labor-inducing abortion.” Although ACOG does not mention live birth as a complication in its patient education materials, this is the issue addressed by the Born-Alive Infant Protection Act passed by the U.S. Congress in 2002.

Jill Stanek, R.N., gave testimony that infants who survived this procedure were placed in the soiled utility room to die; some lived for as long as 8 hours. She recounted having cradled one infant for 45 minutes as it struggled to breathe, and finally died.

What would have happened to a nurse or physician who had resuscitated such an infant, before this Act was passed?

While most people consider it infanticide to dispose of a baby who survives an abortion attempt, then-Illinois state senator Barack Obama considered the Born-Alive Infant Protection Act to be a ploy to undercut Roe v. Wade—one of many reasons he gave for blocking the identical bill in the Illinois Senate.

Other threats to freedom of conscience:

The California Supreme Court ruled, in Benitez v. North Coast Women’s Care Medical Group, that doctors have an obligation to provide medical care regardless of their religious views. The case concerned a lesbian woman who was refused artificial insemination on the basis that the physicians had determined to provide in vitro fertilization only to married patients ( 8/19/08).

The British parliament is debating a bill that would imprison staff at pregnancy centers for up to 2 years for counseling against abortion—if, in the opinion of the British government, the counseling was misleading or inaccurate. No similar penalties have been suggested for misleading pro-abortion counseling ( 8/27/08).

The Yale Human Rights and Development Law Journal has published an article by Carter Dillard, entitled “Rethinking the Procreative Right,” arguing that because it is not specifically enumerated in the Bill of Rights, the right to procreate is limited to one child. The only absolute reproductive right, he argues, is the right not to procreate at all. The right to bear children must be “balanced” against other rights—of other people, of future generations, of nature, of the wilderness, and of nonhuman species ( 7/23/08).

Additional information:


  1. Thank you for this article. I am working to prevent physician assisted suicide from becoming the law in Washington State. If freedom of conscience is not protected, physicians could be forced to participate in killing their patents. There is no more fundamental an American right than the right to conscience. This is an important issue and I am glad AAPS is speaking up on it (I am an AAPS member).

  2. As an AAPS member, I support individual rights and free markets as core American values.

    Hence I strongly *oppose* the proposed Bush administration measure which would carve out a special exemption to protect religious health care workers who prefer not to provide abortion services or information out of “conscience”.

    This issue should be purely a matter of private contract between health care workers and employers, without federal intrusion. In a free society, a pharmacist has the right not to fill certain prescriptions that violate his religious beliefs. And his employer has the right to fire him.

    If the pharmacist’s conscience does not permit him to abide by the terms of a voluntary employment contract, he should find a different employer, not demand a right to a position where he cannot meet the job requirements.

  3. My only concern is what would happen if, on strictly religious or moral grounds, a male Muslim physician refuses to treat an insufficiently covered female or a female Muslim physician refuses to treat men? This is not hypothetical, it is happening in Europe.

  4. The problem with this situation of government “deny[ing] federal funding [(extorted assets)] to medical facilities that discriminate against employees who choose not to provide services they deem to be morally wrong” is one that is present wherever and whenever governments interfere in voluntary contractual agreements and/or other voluntary interactions, both to the mutual benefit of the parties involved. In addition there are the problematic strings (requirements/restrictions) that always go with the accepting of funding – especially the ongoing type – from any person or organization, but particularly from governments.

    In a rational society, an individual seeking a medical procedure would contract with a medical provider acting alone or as part of a company (medical facility) with which that provider has a contract, for a procedure that the individual has decided is in hir best interest as provided by this particular provider. The medical provider would be at liberty to offer or not offer any particular procedure/treatment depending on hir own evaluation of its potential benefit and other attributes, including hir own view of its morality – if sh/e has been wise in having such a contract with the medical facility that provides hir with working space and equipment. A medical facility would also be at liberty to contract or not with a medical provider who chooses to not provide certain procedures/treatments. In all cases in a minimally acceptable society, government would play no role in these decisions – it would only adjudicate in situations of breach of contract (unless the parties had included a private arbitration clause in the contract). In such a society, any taxes that were collected would not be used to interfere in voluntary actions between parties and therefore anyone whose moral views held a certain procedure/treatment to be unacceptable would not be required to provide it, accept it or financially support it.

    Discrimination – originally meaning the judicious use of one’s reasoning faculties to decide to not interact with another person or to not perform particular actions – has become a pejorative applied to enormously many acts of less than full acceptance of persons and their actions. But one should ask if it is in hir own best interest (defined as what maximizes hir own lifetime happiness) to be accepting of everyone and anything. While such discrimination or non-acceptance most certainly does not imply any right to initiate interference with the mutually voluntary interactions of any individuals, it also most definitely does mean that one should not be required to financially support (via money from taxes) those persons or actions of which one disapproves.

    With governments being granted, by the voting residents in democratic nations, the liberty to enforce the views/wants of the majority of voters (or at least the views/wants of those elected by those voters), a cascading series of problems is inevitable. The contents of the AAPS 9/4/2008 article, “Is freedom of conscience at risk?” demonstrates just some of them. The only way to begin to unravel this tangle of apparent conflicts, is for large numbers of people to recognize and accept the role of the individual as the responsible entity for thought and action followed by the non-interference by others in the mutually voluntary interactions of the involved parties. Then and only then can the government-created problems – in this case of requiring individuals to perform and/or financially support actions with which they do not agree – for any reason, begin to be eliminated.

  5. The dept of HHS is proposing a regulation to protect doctors from being forced to perform abortions or other procedures which violate their conscience. They are doing this in response to an ACOG initiative. ACOG is proposing a requirement that residents (and eventually presumably attending physicians) not be able to be Boarded as OB/GYNs unless they have performed abortions. For now, they seek to make it a requirement to graduate from an ObGyn residency.

    The head of the dept of HHS is quick to point out that there ARE ALREADY at least 3 federal laws passed by our congress that protect the right of conscience for physicians. This proposed HHS rule is publicly linking the denial of federal funds to groups seeking to limit a physician’s right of conscience, based on the currently existing laws. If I understand what he wrote correctly, the head of HHS is publishing notice that federal funding already can be removed from entities that pass Board Certification rules (or state licensing rules) that attempt to force a doctor to perform procedures that violate his or her conscience.

    The dept of HHS contends that an individual specialty, or group of doctors who happen to be “in power” does not have the right to force physicians l to violate their conscience as a condition of being licnesed or board certified. HHS based that opinion on already existing federal laws.

    Particularly of concern are medical students and residents who are NOT in a position of power. They can be denied the right to practice in the specialty they have chosen, after numerous years of residency if for example, ACOG were to change the existing requirements to insist that they perform abortions. (ACOG does not after all, require its members to continue to deliver babies throughout their careers).

    One of the duties of the federal government is to protect its citizens. So far at least, we as physicians are still considered citizens. If the leaders of ACOG were to succeed in their attempt to “force” physicians in training to perform abortions, that would just be the first step to forcing other things.

    As Dr. Shane Macaulay (the first posting above) states, the next thing might be to require physicians to kill their patients (euthanasia). If we allow the rights of some physicians’ consciences to be violated, where does it stop?

    This HHS regulation is not “the Bush Administration” “perpetrating something” on America. I think it is a notification to ACOG and other groups which seek to misuse their power to make THEIR view of right and wrong the “law” that they will be violating three or more already existing laws. That violation of federal law will rightly cost them and their institutions or corporations all their federal funding. (Why should we as taxpayers reward someone who breaks the law with federal money?)

    Our existing laws already protect us as physicians, so far. But just as we need to fight “sham peer review” we need to fight for our right to follow our conscience, and for the rights of other physicians (who may be more conservative than we are) to not have to violate their consciences, as well.