Lawrence Jackson/AP
Health and Human Services Secretary Mike Leavitt

Several States Sue Over Medical “Conscience” Rule

January 20, 2009 11:01 AM
by findingDulcinea Staff
A rule that took effect Monday allowing medical professionals to refuse treatment based on moral or religious grounds is the subject of at least two lawsuits.

Lawsuits Argue Rule Impedes Patient Care

Several states and private organizations have filed lawsuits asking that a new rule President George W. Bush instituted for health care workers be overturned, Medpage Today reported.

The rule gives medical employees the right to refuse treatment that they feel violates their personal, moral or religious beliefs. It applies to all employees, including janitors, who work for the more than 584,000 medical entities that receive federal funding, including hospitals, doctors' offices and pharmacies.

Attorneys general in Connecticut, New York, California, Massachusetts, Oregon, Rhode Island and New Jersey are involved in the litigation. 

Andrew Cuomo, who filed a suit on behalf of New York, said the rule would conflict with a state law requiring hospitals to provide rape victims with information on all their legal options, such as emergency contraception.  

“Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience,” Mike Leavitt, secretary of the Department of Health and Human Services, said in an earlier HHS press release on the rule. “This rule protects the right of medical providers to care for their patients in accord with their conscience.”

The focus of the rule is to defend workers’ right to refuse abortion and birth control treatments, though it could also apply to issues like euthanasia and stem cell research. Anti-abortion groups and other conservative organizations have been advocating for Bush to pass the rule before he leaves office.

President-elect Barack Obama has spoken out against the rule, saying in August that he was “committed to ensuring that the health and reproductive rights of women are protected.” However, his administration will have difficulty overturning the rule, which took effect on Monday.

Background: The debate over the rule

The rule was proposed in August by the U.S. Department of Health and Human Services, addressing the debate over the right to refuse medical treatment. The controversy included not only doctors, but also employees like ambulance drivers and pharmacists.

In response to the proposal, 13 state attorneys general and several prominent medical associations wrote to Leavitt to express their opposition. “The proposed regulation completely obliterates the rights of patients to legal and medically necessary health care services in favor of a single-minded focus on protecting a health care provider's right to claim a personal moral or religious belief,” read the letter by the attorneys general.

The HHS, with extensive support from anti-abortion and religious groups, continued to push the proposal through the rule-making process. It faced a deadline of Dec. 21 to pass the rule so that it takes effect before Bush leaves office on Jan. 20. Like many other of Bush’s “midnight regulations,” it can only be overturned through a difficult, time-consuming process.

The Obama administration will have to introduce a new rule to replace it, and then push the new rule through the months-long rule-making process. The rule could also be rescinded legislatively, and The Washington Post reports that N.Y. Sen. Hillary Clinton and Wash. Sen. Patty Murphy have introduced a bill to repeal it.

Reference: Text of HHS rule

Related Topic: Physicians’ conscience debates in other countries

In September, 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.

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