Health care providers and “conscience clauses”

On the first day of the Obama presidency, a regulation promulgated in the waning days of the Bush administration became effective. The regulation (which you can read here) implemented three federal laws that (to one degree or another) protect individual health care providers and health care entities that decline to perform sterilizations or abortions from discrimination or retaliation.

The proposed rule went far beyond refusals to perform abortions and sterilizations (and therefore far beyond the scope of the statutes the rule was supposedly implementing), and the final version of the rule appeared (to me, at least) to largely or entirely address this problem. But other problems (or potential problems) remained, and last Friday the Department of Health & Human Services indicated its intent to rescind or substantially amend the rule. See The N.Y. Times story. According to The Times:

But opponents of the regulation, including the American Medical Association, the National Association of Chain Drug Stores and Planned Parenthood, said it could have voided state laws requiring insurance plans to cover contraceptives and requiring hospitals to offer emergency contraception to rape victims. It could also allow drugstore employees to refuse to fill prescriptions for contraceptives, critics of the regulation have said.

Conscientious objectors deserve to be protected, it seems to me, but only up to a point. When time is of the essence, and when the threat to the mother’s health or life is sufficiently grave and imminent, providers owe it to their patients to provide counseling and a referral or, if a referral is impracticable, they should provide the service. Two excellent articles in the New England Journal of Medicine (both available in full text for free) provide useful background on this debate, as do a Congressional Research Service Report to Congress and a Guttmacher Institute report on state laws protecting providers’ freedom of conscience:

About Thomas Mayo

AA-Law(Faculty)
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