Excerpted from written testimony by the Christian Medical Association submitted to the United States House of Representatives, House Oversight and Government Reform Committee, Subcommittee on Health Care, District of Columbia, Census and the National Archives. The Subcommittee held a hearing July 10, 2012, “The Affordable Care Act (ACA): Impact on Doctors and Patients.”

The ACA’s weakening of conscience rights threatens to accelerate looming physician shortages and result in loss of access for millions of patients:

• Currently, 65 million people lack adequate access to primary care physicians.ⁱ
• Fifty medical studies have projected critical shortages of physicians.ⁱⁱ
• The American Association of Medical Colleges concludes, “If physician supply and use patterns stay the same, the United States will experience a shortage of 124,000 full-time physicians by 2025.” ⁱⁱⁱ
• Millions of patients, notably the poor and those in medically underserved regions, depend for care on religious health care institutions and professionals whose faith and conscience compel their service. Faith-based health care depends on protections against discrimination for upholding life-affirming ethical standards. Absent conscience protection, nine of ten faith-based physicians say they would be forced to leave medicine.^iv Yet the Obama administration eviscerated the only federal regulation that protected the exercise of conscience in health care, and partisans in the last Congress shot down amendments to protect conscience in the ACA.
• The HHS contraceptive mandate illustrates how an administration can use the ACA to weaken conscience rights and ignore First Amendment freedoms. Besides mandating a massive expenditure without a cost analysis, the mandate also tramples the conscience rights of virtually every patient, physician, employer and insurer who ethically objects to any of the contraceptives included in the mandate, including those which the FDA notes can end the life of a human embryo.
• Funding for abortion training is not excluded from the Teaching Health Graduate Medical Education (THCGME) program. Without strong conscience protections, such training can become essentially mandatory in practice and can effectively exclude life-affirming OB/Gyn residents from medicine.

CMDA CEO David Stevens, MD, MA (Ethics): “This past week I did a Christian Doctor’s Digest STAT interview with Stewart Harris, who teaches constitutional law at a nearby law school. The interview will be released next month. He is Princeton-trained, articulate and media savvy, since he does a regular regional NPR program on constitutional law. Since the contraceptive mandate has generated more than 20 lawsuits that will likely end up at the Supreme Court, I asked him how he thought the Court might rule.

“He thought since the contraceptive mandate is “generally applicable” in that it applies to everyone except churches that this will likely be the argument made by the government, and it could succeed.

“I commented that the religious exemption clause in the contraceptive mandate is the narrowest one ever written into federal law. If it is not overturned, this could have a profound effect on religious freedom, essentially narrowing our right of freedom of religion to simply a freedom of worship. In other words, we could worship whatever and however we desired but would no longer have the right to exercise our religious beliefs in the public square.

“I then stated as an example, ‘So if the government required all doctors in OB/Gyn or family practice to have abortion training or to provide abortions in their practice and thus the law was generally applicable to all physicians in those specialties, that would be constitutional?’ He responded, ‘I hadn’t thought of it in that way, but the answer could be, ‘Yes.’

I’m not a constitutional lawyer, but I know there are other factors to consider. CMDA partners with a number of legal organizations that are involved in these suits. These attorneys will also argue that the government does not have a compelling interest to force religious groups to effectively subsidize, against their convictions, all contraceptives. They will also argue that the mandate is not the least religiously restrictive way to pursue its goals. There are also laws on the books prohibiting requiring abortion training or other participation in abortion.

“Stewart went on to comment that the interpretation of the Constitution is unfortunately often based on the ‘rule of five’ – whatever you can get five Justices of the court to agree on is considered constitutional. He then commented that this is why it is so important to elect people to office who represent your views on important issues. Not only will they pass laws that don’t abuse religious liberty; they are also some of the ones who will decide who the next Supreme Court Justices will be–and whether those justices will follow the original intent of the Constitution or bend it to suit their own preferences. He expects three Justices to be replaced in the next four years.

“It may seem obvious to us that the First Amendment free exercise of religion clause makes the contraceptive mandate unconstitutional, but others see it in a totally different light. We dare not let ourselves think we are too busy to be involved in this crucial time in the history of our country. This fall we must vote and urge as many others as possible to register to do the same.”