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Putting President Obama’s “Conscience” Proposal in Context

The Evolution of Health Care Refusal Laws

Maps: State Refusal Laws for Providing Abortion Services | State Refusal Laws for Dispensing Contraception

Slideshow: A Timeline of Federal Refusal Rules

Conservatives have criticized the Obama administration for infringing upon the conscience of health care professionals and “forcing” them to provide abortion services when it announced plans in early March to overturn Bush’s midnight regulation that allows health care providers to refuse to provide health services, counseling, and referrals related to procedures they find objectionable. Yet this assertion could not be further from the truth. President Obama’s proposal to rescind Bush’s last-minute rule restores the pre-existing compromise established through decades of debate.

In recognition that Americans hold conflicting religious, moral, and ethical views on abortion, sterilization, contraception, and other health care services, federal and state governments have strived for decades to strike a compromise and balance competing interests when health care providers’ and patients’ consciences conflict. One prominent example of this balance is Title VII of the Civil Rights Act, which prohibits employment discrimination based on religion, among other things, and requires employers to accommodate their employees’ religious needs if doing so does not impose an undue burden on the employer.

The Bush rule does not honor that effort and joins a string of federal laws that increasingly favor the conscience of health care providers who hold a certain viewpoint over the rights, conscience, and wellbeing of their patients. Policies in place prior to the Bush rule already allowed an expansive array of avenues for health care personnel and entities to refuse to provide reproductive health care services that they found morally objectionable.

State Refusal Laws for Dispensing Contraception

But the Bush rule goes even further, prohibiting recipients of federal funds from “discriminating” against virtually any individual or institutional health care providers—including physicians, nurses, hospitals, pharmacists, insurance companies, and even ambulance drivers and candy stripers—who deny services or withhold vital information about health care options to which they object for almost any reason.

Obama’s proposal to rescind the Bush “conscience” rule simply restores the prior balance that existed on matters of conscience. It once again guides the health care system to value the consciences of health care providers and patients.

The evolution of federal and state conscience rules

Sen. Frank Church (R-ID) introduced the first federal compromises in the 1970s in response to the Roe v. Wade decision that legalized abortion and stoked conservatives’ fear that all hospitals and doctors would have to provide abortion care. The Church Amendments directed, among other things, that recipients of federal funding could not require health care professionals to perform or assist in abortion or sterilization procedures that were contrary to their religious or moral convictions. The Church amendments also protected health care personnel who were equally compelled by their religious or moral beliefs to provide such services.

Many states passed similar legislation in the following years. From 1973 to 1995, 34 states passed laws allowing some health care providers to refuse to perform or assist with abortions. Forty-six states now have such laws, and some state laws have qualified the right to refusal, requiring that health care professionals could refuse to provide care only if their objections were documented in writing, if a case was not a medical emergency, or if they referred patients to a professional willing to provide the required services.

The Trend in State Abortion Conscience Clause Rules State Refusal Laws for Providing Abortion Services

Two decades passed with little federal activity around refusal laws until 1996 when Congress passed the “Coats amendment,” which allowed post-graduate medical education programs to omit abortion training and permitted any health care entity to refuse to provide, train for, or refer for abortions.

The “Weldon amendment” further eroded access to abortion in 2004 by allowing health care facilities and insurance plans, among others, to refuse to provide, pay for, cover, or refer for, abortion. Mississippi passed a policy that same year allowing all health care professionals, including pharmacists and counselors, to refuse involvement in any type of service they found objectionable without any liability. Mississippi Gov. Haley Barbour heralded this law, which was a precursor to the Bush rule, as “the single most expansive conscience exception law in the nation."

The medical profession responded to these laws by clarifying and reinforcing the obligations of all health care professionals. The American Medical Association passed a resolution in 2005 that pharmacists and pharmacies should fill all valid prescriptions or provide an immediate referral, and that, in the absence of a pharmacist willing and available to do so, doctors should be allowed to provide the prescribed medication themselves. The American Pharmacists Association has likewise stated that pharmacists should not interject themselves between a patient and her physician, lecture a patient, or obstruct access to legally-prescribed medication.

Most recently, the American College of Obstetricians and Gynecologists issued guidance last year that doctors whose personal beliefs require them to deviate from standard practices can deny treatment only if they give prior notice of their moral objections, refer patients in a timely manner to another doctor, and provide any necessary care in an emergency. But the Bush administration used that professional guidance as “evidence” that a new regulation shielding objectors was needed.

Seen in this context, it is clear that Obama’s proposal to rescind the Bush “conscience” rule simply restores the prior balance that existed on matters of conscience and instead values the conscience of all health care providers and patients.

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