Despite media hype to the contrary, the proposed rule by the Obama administration to rescind the midnight Bush "conscience" regulation governing health care providers actually does respect the conscience and religious freedom of those in the industry who object to providing medical treatments on religious or moral grounds. In fact, all the proposed rule does is return matters to the way they were three months ago, before the Bush administration issued a vaguely worded, overly broad ruling that tipped the balance toward religious refusals and neglected patients’ rights and conscience.
Don’t be fooled by claims that the recent Bush rule somehow represents common ground. On the contrary, the Bush rule supports only one side of the debate—and an extreme side at that. The rule broadens the scope of conscience refusals to include virtually any moral objection to a wide variety of treatments, ranging from family planning information and infertility procedures to end-of-life care. Even more, the rule ignores the conscience of the patient, whose beliefs may be equally strong but very different from those of the health care provider.
A progressive view of conscience recognizes that diverse moral beliefs and worldviews exist, and this is a good thing. But when different beliefs clash, one of them should not automatically trump all others. This means that not just the conscience of the health care provider is at stake here. We also have to consider the conscience of the patient—a mother, let’s say, who relies on contraception to be a morally responsible parent, with enough emotional, spiritual, and physical energy to care for her existing children. Or the conscience of a father who seeks to be sterilized for the same good reasons.
There’s also the conscience of the doctor who has prescribed certain treatments to provide his or her patients with the care they need. Prior to the Bush rule, the law protected doctors who did not want to provide abortion care and those who did. The Bush rule, however, provides privilege to only one perspective and excludes all others.
In truth, health care providers who refuse to perform certain treatments on moral grounds have a competing moral responsibility to their patients—one that is based on professional ethics. In considering matters of conscience, this obligation must be weighed as well.
Let’s be clear about a few things. Current employment laws, such as Title VII of the Civil Rights Act, already protect the conscience of health care providers—and indeed all employees—against religious discrimination. Under Title VII, an employer must provide an employee with a religious accommodation if the request is reasonable and doesn’t impose an undue burden on the employer.
Case in point: If a firefighter wants to study the Bible during lunch hour, that’s fine, but if the station’s alarm goes off during study time, the firefighter must put down the Bible and climb on the truck.
So how to balance competing claims of conscience?
We need rules that are fair and that balance the rights and responsibilities of health care providers with the rights and needs of patients. That is what the Obama administration’s proposed rule does. It resets the law to an appropriate compromise position, seeking real common ground amid conflicting interests. It respects diverse beliefs. It clarifies grounds for religious refusals, providing clear directives to medical personnel and care to patients.
Despite all of our differences, surely we can agree on two things. First, health care providers in non-emergency situations should not be forced to provide care that violates their conscience. Second, patients should not be deprived, because of caregiver conscience alone, of the treatment they need.
This is an incredibly difficult area to navigate, and it’s important to get it right. In our quest to respect individual conscience, we must be discerning and weigh competing values. We must balance rights, responsibilities, and needs. The proposed rule of the Obama administration does these things, as it re-establishes protection of conscience for all citizens in our diverse democracy.
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Director, Faith and Progressive Policy Initiative