Lawrence Jackson/AP
Health and Human Services Secretary Mike Leavitt

Bush Plans Last-Minute "Physician's Conscience" Rule Despite Controversy

December 03, 2008 12:28 PM
by findingDulcinea Staff
A final-hour push by the Bush administration could bring about a "right of conscience" rule allowing medical professionals to refuse treatment based on moral, rather than scientific, grounds.

Ruling Could Be Difficult to Overrule

The ruling has been the subject of intense debate and scrutiny over the last year mostly for its role in a doctor's ability to refuse an abortion or birth control, but critics fear its impact could be more far-reaching.

If passed by the Department of Health and Human Services, the rule would affect 584,000 medical entities that receive federal funding, including hospitals, doctor's offices and pharmacies, which have become a focal point of the debate after some pharmacists refused to fill prescriptions for contraception and the morning-after pill.

Under federal law, if the statute is passed by Dec. 21, the incoming administration would be unable to alter it without submitting a counter rule and allowing for public comment, a process that will take months.

According to The New York Times, President-elect Barack Obama was an early critic of the proposal when it became a lightning rod for debate earlier this year, saying the rule "will raise new hurdles to women seeking reproductive health services."

In late September, more than a dozen state attorneys wrote to the U.S. Department of Health and Human Services (HHS) to protest a proposed rule that advocates say will protect health care providers who have moral objections to certain procedures, and that opponents say could limit a woman’s access to health care.

According to the Associated Press, “In late August, the Bush administration proposed stronger job protections for doctors and other health care workers who refuse to participate in abortions because of religious or moral objections.”

In his blog, HHS Secretary Mike Leavitt said he heard that “certain medical specialty certification groups were adopting requirements which potentially violate a physician’s right to choose whether he or she performs abortion.” After asking the groups, in writing, about the proposals, Leavitt said he found the responses “dodgy and unsatisfying.”

The situation led him and the department to create the rule, which would join three other federal rules protecting health care providers who refuse to perform certain procedures because of moral objections.

But one of the groups Leavitt is talking about says if a doctor’s conscience leads to refusing a procedure, there are no sanctions.

The states’ protest comes at a time when abortion rates are the lowest in three decades, according to Agence France-Presse. A report released this week by the Guttmacher Institute said the rate of teenagers who had abortions dropped by half, from 42 in 1,000 girls in 1989 to 20 in 1,000 girls in 2004.

Physicians’ conscience debates are showing up in other countries, too. Just last week, the Ontario College of Physicians and Surgeons was considering a policy that would have penalized doctors who refused to, for example, prescribe birth control pills because of religious beliefs. After an outcry, the group amended the proposal to remove “provisions that would have potentially seen doctors face more misconduct charges for putting their own conscience before the convenience of patients,” the National Post reported.

In Australia, the state of Victoria is considering a law that would “require a doctor who does not want to perform an abortion to refer the patient to an alternative doctor or hospital,” according to the Australia Broadcast Corporation.

The state’s Archbishop has warned that if the law is passed, the Catholic hospitals there may close their maternity wards.

Background: Previous policy proposals

On March 14, Leavitt issued a press release expressing “disappointment” with the American Board of Obstetrics and Gynecology and the American College of Obstetricians and Gynecologists. The groups, the release said, proposed a new policy, and he asked that they “reject this policy and protect the conscience rights of physicians.”

The policy Leavitt mentioned was not spelled out in the press release. In a letter to the leaders of ABOG and ACOG printed in the release though, Leavitt wrote, “It appears that the interaction of the ABOG Bulletin with the ACOG ethics report would force physicians to violate their conscience by referring patients for abortions or taking other objectionable actions, or risk losing their board certification.”

Norman Grant, head of ABOG, denied the existence of any policy in an August letter to Leavitt. Grant quoted correspondence he said was sent to Leavitt five months earlier: “[ABOG] has taken no stand, pro or con, against individual physicians who choose to or choose not to perform abortions or to refer patients to abortion providers.”

Grant’s March letter went on to say that the issue of choosing to perform abortions isn’t raised in ABOG’s application, tests or maintenance requirements. His August letter also asked that Leavitt “provide evidence supporting the serious and damaging charges you have made,” and hold hearings on conscience rights.

Opinion & Analysis: Physicians’ rights or patients’ rights?

Dr. Wendy Chavkin, writing on the site, opposed the administration’s proposal.

“If they go into effect, the regulations would endanger women and undermine the doctor-patient relationship. Whatever religious values we may hold, we must also respect our patients’ right to know all of their treatment options and how to fulfill them,” she wrote.

But on the Center Blog, Casey Mattox, of the Center for Law & Religious Freedom, said the current rules aren’t enough.

“The existing federal laws prohibiting the rampant discrimination in the healthcare profession are simply being ignored,” Mattox wrote. “The Department’s proposed regulations are urgently needed in order to ensure that pro-life physicians, nurses, physician assistants, and others are able to remain in the practice and that the next generation of medical professionals can enter the profession with the confidence that they will not be forced to choose between their career and their conscience.”

Reference: ACOG ethics report

ACOG’s bulletin, “The Limits of Conscientious Refusal in Reproductive Medicine,” was produced by the organization’s ethics committee in Nov. 2007. In it, the committee said, “Conscientious refusals that conflict with patient well-being should be accommodated only if the primary duty to the patient can be fulfilled.”

It also recommends that people who have beliefs that may create a conflict should practice with people who don’t share that view, “or ensure that referral processes are in place.”

For emergency situations, “in which referral is not possible or might negatively have an impact on a patient’s physical or mental health, providers have an obligation to provide medically indicated and requested care.”

Related Topic: Pharmacies not stocking contraceptives


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