This excerpt is the seventh in a series of essays on conscience in healthcare, by Jonathan Imbody, Vice President for Government Relations for the Christian Medical Association and Director of Freedom2Care. To find the series, visit www.cmda.org/thepoint. 

On January 26, 2018, the U.S. Department of Health and Human Services (HHS) proposed a conscience protection rule designed to enforce and educate regarding “a long history of providing conscience-based protections for individuals and entities with objections to certain activities based on religious belief and moral convictions.”

The rule specifically cited more than two dozen existing federal statutes protecting the exercise of conscience in healthcare, both for patients and professionals. Included in the laws are:

• Conscience protections related to abortion, sterilization and certain other health services to participants in programs—and their personnel—funded by the Department (the Church Amendments);
• Conscience protections for healthcare entities related to abortion provision or training, referral for such abortion or training, or accreditation standards related to abortion (the Coats-Snowe Amendment);
• Protections from discrimination for healthcare entities and individuals who object to furthering or participating in abortion under programs funded by the Department’s yearly appropriations acts (e.g., the Weldon Amendment and others);
• Conscience protections under the Patient Protection and Affordable Care Act (ACA) related to assisted suicide, the ACA individual mandate and other matters of conscience;
• Conscience protections for objections to counseling and referral for certain services in Medicaid or Medicare Advantage;
• Conscience protections related to the performance of advanced directives;
• Conscience protections related to Global Health Programs to the extent administered by the Secretary (e.g., Helms Amendment and others);
• Exemptions from compulsory healthcare or services generally, and under specific programs for hearing screening, occupational illness testing; vaccination, and mental health treatment; and
• Protections for religious nonmedical healthcare.

The Department invited public comment on the proposed rule by March 27, 2018.

Conscience protection laws require education and enforcement
The following excerpt of a comment on the HHS proposed rule, submitted by the Christian Medical Association and its conscience-focused entity Freedom2Care, outlines the need for and benefits of the rule:

Representing combined constituencies of nearly 50,000 individuals who are committed to the moral and ethical practice of medicine, [we] heartily applaud this proposed rule. We laud the Department for producing an outstanding tool to enforce existing conscience protection law and to educate regarding our most cherished principles of freedom.

The proposed rule clearly and thoroughly lays down the legal and rational foundation for the Department’s enforcement of and education about existing federal law that protects the exercise of conscience and religious convictions in healthcare, both for patients and for professionals. Given the priority of conscience and religious freedom in our nation’s founding, in our Constitution and in our legal tradition, the case could not be clearer for restoring the rightful place of these freedoms among other civil rights laws and principles.

Only willful political corruption and ideologically driven assaults on these core founding principles can explain why in 2018 the universal integration of conscience and religious freedom in healthcare remains incomplete. Therefore the proposed rule offers a welcome, if long overdue, course correction to get the nation back on track on the principles on which this democratic republic depends.

While the proposed rule offers hope of a renaissance of a political, cultural and professional commitment to freedom of conscience and religious exercise, ideological forces within government, academia and the healthcare community continue to subvert these freedoms. As a survey of medical and academic publications will indicate, abortion advocacy and a strong undercurrent of intolerance for faith-based and pro-life commitments would sweep out of medicine any and all health professionals who hold to such ideals. A radical and authoritarian ideology that marches under the false flag of “patient autonomy” would force all professionals to participate in any legal procedure or prescription, regardless of professional judgment, medical ethics or moral convictions.

The result of such intolerance and coercion, left unchecked by federal law, court action and regulatory enforcement, would be a catastrophic loss of healthcare for millions of American patients. Hardest hit by the loss of pro-life and faith-based professionals and institutions would be the poor, the marginalized and the medically underserved.

By enforcing the freedom of pro-life and faith-based health professionals to continue to practice medicine, the proposed rule protects patient access to a diverse pool of health professionals and institutions. In the process, the rule also upholds and advances core American values of freedom.

Polling evidences the need for conscience protections
The comment of the Christian Medical Association and Freedom2Care also provided polling evidence to answer HHS’s request for “comment on information…about the occurrence or nature of coercion, discriminatory conduct, or other violations of the Federal health care conscience and associated anti-discrimination laws.” HHS also requested evidence on “the general knowledge, or lack thereof, of the protections established by the Federal health care conscience and associated anti-discrimination provisions.”

• A survey conducted for CMA’s Freedom2Care by The Polling Company, Inc. revealed that 92 percent of faith-based physicians said they would be forced to leave medicine if coerced into violating the faith tenets and medical ethics principles that guide their practice of medicine. Faith-based health professionals do not, and cannot, separate the faith principles that motivate them to serve the needy from the faith principles that uphold the sanctity of human life.
• The survey also found that 39 percent have “experienced pressure from or discrimination by faculty or administrators based on [their] moral, ethical, or religious beliefs.”
• Conscience rights impact not only health professionals but also the patients they serve. In Freedom2Care’s nationwide polling of American adults, 88 percent said it is important to them that they share a similar set of morals as their doctors, nurses and other healthcare professionals.
• The Polling Company, Inc., also found that only 38 percent of Americans realize that physicians may not legally be coerced into violating standards of medical ethics and their own conscientiously held moral convictions by requiring them to perform abortions or refer patients for abortions.
• From several decades of communicating with health professionals on conscience issues, my sense is that those opposed to conscience protections are more aware of such protections than the pro-life and faith-based professionals who currently need them most. Many abortion activists and advocates, including those in the medical community, have focused on an agenda of mandated abortion participation and have accurately identified conscience protections as a primary roadblock to achieving their goal.

Medical schools too often undermine conscience
Meanwhile, medical school curricula often are so tightly packed with technical instruction that little room remains for information and discussions about conscience protections. Given the current pressure from some within medical academia to do away with conscience protections, medical school instructors may not even be a reliable source of accurate and unbiased information on this topic.

In communications over the years with physicians who have experienced job loss and other forms of discrimination over conscience issues, it is clear that some are not only unaware of legal protections but also not necessarily inclined to fight for their rights. Medical training can involve a fair amount of pressure to conform to institutional requirements. Medical education also tends to focus on training about how to follow procedures and protocols rather than about how to challenge the system.

The Polling Company, Inc.’s survey of 2,865 members of faith-based medical organizations found that when faith-based health professionals (primarily physicians) were asked to assess their educational experiences:

• 33 percent have “considered not pursuing a career in a particular medical specialty because of attitudes prevalent in that specialty that is not considered tolerant of [their] moral, ethical or religious beliefs.”
• 23 percent have “experienced discrimination during the medical school or residency application and interview process because of [their] moral, ethical or religious beliefs.”

In light of the threats to conscience protections, a general lack of awareness of legal protections and recourse and a disinclination to “challenge the system” makes the education of the medical community an urgent priority. Such education should include not only an outline of specific legal protections but also an education about why conscience protections are an important part of medicine and American values.

Conscience protections build a wall against intolerance and coercion
The Christian Medical Association/Freedom2Care comment concluded:

The Department has crafted a rule consistent with decades of federal conscience law and American values of freedom.

Education about and enforcement of these laws has long been neglected, allowing a culture of intolerance and coercion to fester within the medical community. Those subject to job loss, loss of privileges, being barred from educational opportunities and other forms of discrimination include pro-life and faith-based health professionals and institutions. These individuals and institutions are often the very ones providing care for marginalized, under-served and poor populations who otherwise would have few or no options for healthcare.

Enforcing existing law and educating the healthcare community regarding conscience protections will not only protect life-affirming healthcare professionals dedicated to longstanding medical ethics principles; it will also protect the millions of patients who share their values and depend upon their continued service.