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Bush's Conscience Rule closes loophole; enables caregivers to refuse care

elixir's picture

(h/t State of Disbelief @ The Confluence)

The passing of Bush's Conscience Rule enables the implementation of laws written decades ago allowing caregivers to refuse services they consider morally objectionable. The laws followed the Supreme Court passage of laws allowing a woman's right to abortion but didn't have the connection to enable them.

The Bush administration announced its "conscience protection" rule for the health care industry yesterday, giving everyone including doctors, hospitals, receptionists and volunteers in medical experiments the right to refuse to participate in medical care they find morally objectionable.

"This rule protects the right of medical providers to care for their patients in accord with their conscience," outgoing Health and Human Services Secretary Mike Leavitt said.

The right-to-refuse rule includes abortion, but Leavitt's office said it extends to other aspects of health care where moral concerns could arise, including birth control, emergency contraception, in vitro fertilization, stem cell research or assisted suicide.

The rule will take effect the day before President George W. Bush leaves office.

Unfortunately, this provides an opportunity for Bush to further damage a woman's right to choose.

Critics of the rule said it was too broad and threatened the rights of patients. They said they were worried that patients would not be given full and complete information about their medical options.

"This gives an open invitation to any doctor, nurse, receptionist, insurance plan or even hospital to refuse to provide information about birth control on the grounds that they believe contraception amounts to abortion," lawyers for the National Women's Law Center said.

Let's hope the president-elect sticks to his word come January:

In August, Sen. Barack Obama criticized the rule when it was proposed and said he was "committed to ensuring that the health and reproductive rights of women are protected."

Asked about the rule yesterday, a spokesman for Obama's transition team said the new president "will review all 11th-hour regulations and will address them once he is president."

After Jan. 20, the Obama administration could begin the process of adopting a revised ruled, but that would likely take many months. Instead, Congress could adopt a resolution that rejects the late rules adopted by the Bush administration.

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DCblogger's picture
Submitted by DCblogger on

Doctors, Nurses, and pharamicists have failed to speak out against this. They should have done so decades ago.

Now we are all going to have to ask our doctors, nurses, et al about their religious beliefs and it there are any circumstances that would cause them to withhold care from us. Imagine a Doctor having to explain, yes I am a Catholic, but not that kind of Catholic.

A bad day for health care, a bad day for liberty, just plain bad.

Damon's picture
Submitted by Damon on

Get the hell out, already.

If our president-elect has any level of decency, he'll change this on Day One, along with the other things Bush has written into de facto law over the last few weeks.

Iphie's picture
Submitted by Iphie on

isn't just about homophobia -- his bigotry extends far beyond that -- it seems to me that this rule opens up the possibility of discrimination of any kind under the guise of moral objections.

Could someone withhold care from LGBT people because they believe homosexuality is a sin?

Could someone refuse to treat the frat boy with alcohol poisoning because drinking is wrong?

How about refusing care to baby born out of wedlock?

DCblogger's picture
Submitted by DCblogger on

it also opens the possibility of Catholic hospitals refusing the honor advanced medical advisory documents. The Catholic hospitals in Wisc were lobbying for exactly that, although if you are uninsured I am sure they would honor your document.

Valhalla's picture
Submitted by Valhalla on

HHS Secretary Mike Leavitt said the reg is meant to cover abortion, birth control, emergency contraception, in vitro fertilization, stem cell research or assisted suicide.

The language of the regulation has no restriction or limitation of any kind, not even for emergency situations, so any medical procedure, prescription, service, education, etc. can be refused on the basis of the provider's objection. Providers also can refuse to make referrals, or other arrangements for "offending procedures". (notice it's the procedures that are offending, not the people who are offended) Refusal to treat Ice-Floe Eligibles would presumably be included.

Defining which employees are covered:

When applying the term “assist in the performance” to members of an entity’s workforce, the Department proposes to include participation in any activity with a reasonable connection to the objectionable procedure, including referrals, training, and other arrangements for offending procedures. For example, an operating room nurse would assist in the performance of surgical procedures; an employee whose task it is to clean the instruments used in a particular procedure would be considered to assist in the performance of the particular procedure.

(sec. 88.2)

So, can the receptionist refuse to books appointments for an 'objectionable procedure'? Can the housekeeping staff refuse to clean a room where an 'objectionable procedure' is performed? Can I get a gig as an assistant of some sort at a fertility clinic and then refuse to do any part of my job whatsoever based on my 'conscience'? Bc if so, I'm thinking career change, why should I have to actually work for a paycheck? (but I digress...)

Here's the rationale for why the reg wins on a cost/benefit analysis:

An underlying assumption of this regulation is that the health care industry, including entities receiving Department funds, will benefit from more diverse and inclusive workforces by informing health care workers of their rights and fostering an environment in which individuals and organizations from many different faiths, cultures, and philosophical backgrounds are encouraged to participate. As a result, we cannot accurately account for all of the regulation’s future benefits, but the Department believes the future benefits will exceed the costs of complying with the regulation.

(sec. VI).

Short: We Have Always Been at War with Eastasia.

Bush et al, constant foes of what they consider judicial interference, have created a new right upon which to base the regulation, the "right of conscience." As far as I can tell the right of conscience does not extend to a refusal to pay taxes for a corrupt war, a corrupt administration, or the general corrupt fuckwittedness of the Bush administration, but I'll keep looking.

Evidently the regulation goes into effect just a day or two before Jan. 20. I am hoping, but not counting on, one of (any of) the major feminist or civil rights orgs will legally challenge the promulgation and delay the reg just a few days. I have no faith that Obama would reverse the regulation once in office, but he might, just might allow it to sink into oblivion. (or am I being too hopeful?)

Aeryl's picture
Submitted by Aeryl on

"Conscience" decisions disproportionately affect women? Funny that. I wonder if the is because of "emotional natures" which limit our decision making, or if it really does all go back to "origin sin", and our inability to be moral actors?

Valhalla's picture
Submitted by Valhalla on

Courts are generally reluctant to strike laws for overbroadness or vagueness unless the extent of the overbroadness directly prohibits or impinges on otherwise constitutionally protected rights. That's why, for instance, there's been a series of anti-porn statutes out of Congress over the last decade or so that have been struck down by federal courts, because the definition of porn and some of the requirements would prohibit behavior protected by the 1st Amendment.

But aha! you might say, isn't abortion and contraception (at least) just such a constitutionally protected rights? Putting aside the fact that since Casey and Webster, the constitutional right to abortion is arguable, no, not really, because the right to contraception and abortion is not a right to get them from any particular provider. It's just a right that enjoins the state from directly prohibiting them. In the porn cases, the state was directly prohibiting behavior that was otherwise constitutionally protected, while with this horrific regulation the state is not prohibiting anyone from medical care, if they can find a provider for it.

The other challenge in challenging the regulation is that the regulation does not outright prohibit employers from 'discriminating' against refusers, but ties receipt of federal funds to the prohibition. The federal courts long ago held this practice constitutional with regard to abortion and sterilization (legislation prohibiting entities receiving federal funds from 'discriminating' against any provider for refusing to perform or assist in abortion or sterilization have been around since the 70s, so even if the regulation were repealed by the new administration, providers would still be able to refuse to perform abortions). The text of the regulations doc go to great pains to recite the legislative and judicial history of the abortion legislation (the 'Church Amendments', that is really the name) with, I'm sure, the idea of establishing precedent in the face of legal challenges.

The good news, such as it is, is that private organizations such as Planned Parenthood who receive no federal funds will not be directly affected. Small consolation.

I'm not at all optimistic that any legal challenge could succeed, I'm just hoping for a challege that convinces a court to delay actual promulgation long enough to last past Bush's last day.

P.S. -- I just realized in my comment above I have the wrong link for the text of the regulation, here is the correct one.

Iphie's picture
Submitted by Iphie on

the health care industry ... will benefit from more diverse and inclusive workforces by informing health care workers of their rights

The new found respect or worker's rights is truly admirable.

amberglow's picture
Submitted by amberglow on

1 more time, i'm gonna scream -- from Obama on down, it's simply another Orwellian lie used to cover up intolerance and bigotry-- and the religious demanding exemptions from our laws, Constitution, and all professional standards and codes of conduct.

Submitted by scoff on

"the religious demanding exemptions from our laws, Constitution, and all professional standards and codes of conduct."

Exemptions due to religious belief are steadily chipping away at the foundation of the country. The Wall of Separation isn't far from coming down and with it goes our freedom.

amberglow's picture
Submitted by amberglow on

these exemptions -- and outright preferential treatment.

From (certain kinds only of) the religious to corporations and industries to all the wealthy to those who hold political office to ...

that overall is what is killing us, i'd say.

amberglow's picture
Submitted by amberglow on

in many places -- and they say it's bec they're Christians.

eHarmony was brought to court for discrimination, and created a "separate-but-equal" site in response.

and there was a big deal about a Houston landscaper who refused gay clients.

there are tons of stories like these all over.

Pharmacists and Doctors, tho, are legally obligated to provide care and do their jobs as part of their licensing and state certification, no? most private businesses aren't, and are allowed to discriminate, sadly.

Valhalla's picture
Submitted by Valhalla on

I don't think they are required to provide particular medical services or prescriptions as part of licensing.

They are prohibited from discriminating against patients or customers for the same reasons that other private businesses are by Title VII or state law (on the basis of gender, race, national origin, etc.), but they are not required to provide any particular services. At least, I used to work vaguely in this area and have never heard of such requirements, aside from a few relatively narrow situations.

Physicians at least, and med students in training, have been able to refuse to perform abortions or sterilizations without adverse effect on their employment or education since the Church Amendments back in the 1970s. Even without those laws, though, I think for physicians this sort of thing would tend to work itself out with referrals to colleagues and such.

This reg is much more aimed at employment relationships, esp. now that so many physicians work for hmos, and with the rise of mega-corp owned pharmacies and in-store pharmacies. Not that employers (Target, Walmart) have done any great favors to opponents of the regulation, but there aren't, say a lot of indpendently owned pharmacies anymore where Joe Pharmacist could just quietly refuse to stock birth control pills, everyone knew it, and people would go elsewhere. Now Walmart management gets to decide whether to fire you or dock your pay. While I doubt most corporate overlords would oppose the regulation on the basis of the right of patients or customers to received care or services, they would mightly object to any sort of employee-controlled job responsibility exceptionalism. From a management and cost control perspective, this is a freakin' nightmare. What if the only pharmacy assistant you have to cover the midnight shift at your 24-hour CVS refuses to fill any prescriptions for drugs developed using animal testing?

By the way, surfing around, I found that the American Medical Association, the American Hospital Association, the American College of Obstetricians and Gynecologists, the American Nurses Association, American Academy of Pediatrics and the American Psychiatric Association, and at least 27 state medical societies oppose the regulation.

Stephanie's picture
Submitted by Stephanie on

...while I was still an apple in my parents' eyes, my mother had her first pregnancy, and suffered a miscarriage. She was far enough along to learn later that it had been a boy.

She went to the hospital e.r., a Catholic hospital, where she was admitted.

About 20 years later when I was a teenager, she told me about that experience. Being admitted to the hospital, a young woman in a frightening situation, scared she was losing her baby. She said they put her in a room, and when she called for a nurse because she was in pain, they ignored her, wouldn't respond. They (were the nurses nuns at the time?) acted like she had done something to cause the miscarriage. (she did not elaborate on that point)

My Catholic mom 20 years later, still totally incredulous at the idea that she would cause the miscarriage, did not understand why they treated her so badly. It hurt, she was in pain, they would not help her. Why would they think she had caused this problem?

She was a "respectable" married lady at the time too.

So I guess we're regressing about 60 years.

Any congress people interested in passing a law to negate this new bushism?

Damon's picture
Submitted by Damon on

This is yet another reason why I'll be missing Hillary in the Senate. I really do feel like we're losing something, here:

The 127-page rule is the latest in a flurry of federal regulations that the administration is implementing before President Bush's term ends, including a number that would weaken government protections for consumers and the environment.

Although the Obama administration could reverse the rule, it would require a lengthy process. Last month, however, Senator Hillary Clinton of New York, and Senator Patty Murphy of Washington, both Democrats, introduced a bill to repeal the regulation legislatively.

(Patty MURRAY, people. Come on, Washington Post.)

I wonder if a Senator Caroline Kennedy would have been so bold as to be "divisive" and "partisan" and not just support, but sponsor, such a bill if she'd been in the Senate at the time?

amberglow's picture
Submitted by amberglow on

abortions have always been -- the nurses reacted that way because they had seen tons of women who had either missed due to actions done to terminate -- or messed themselves up (or paid someone else to do it back-alley).

And the later in the term, the more likely it is both miscarriages and back-alley abortions would require medical treatment, no? Most nurses wouldn't have seen all the spontaneous and early misses at all (and they're not uncommon), bec they don't always require that the woman be admitted to a hospital afterwards.

(My grandma went back-alley during the depression -- and needed to be hospitalized afterwards because they weren't careful -- she was messed up down there forever after. I'm sure she went to a public hospital tho, not Catholic.)

bringiton's picture
Submitted by bringiton on

A Jehovahs' Witness can block blood transfusions, a Scientologist can block administration of psychiatric meds, or a Christian Scientist can block all medical procedures and administration of any medication, period.

Just think of the savings if Christian Scientists can be recruited into every hospital and doctor's office! US health care costs could be reduced to zero.

This idiocy is just one of many of poison-pill orders that BushCo is shoving down the throat of the body politic; Rolling Stone has more.

Submitted by ohio on

and I'm a doctor, can I refuse to treat him because my conscience doesn't permit me to treat insufferable bigot torture-lovin' buttmonkeys?

(FTR, if I were a doctor, I would treat him. I don't make moral judgments about people when they're in pain and needing help. I wait until they've recovered. It's called manners, people.)

amberglow's picture
Submitted by amberglow on

Great new article on this -- with data from the first-ever survey done on doctors, religious beliefs, and how it affects their practices and our care --

Physicians, “Conscience,” and the Denial of Options: New federal regulations, enacted by the lame-duck Bush administration, privilege the religious or moral scruples of physicians over a patient’s right to treatment. 40 million Americans have physicians who will not present them with all the options for treatment. --

... In February 2007, Curlin and colleagues published one of the first empirical studies of religion, conscience, and controversial clinical practices in the New England Journal of Medicine. Based on a survey completed by 1144 randomly-selected physicians who belong to the American Medical Association, Curlin found that most physicians (63%) believe it is appropriate for physicians to explain to patients their moral objections to practices such as terminal sedation (“administering sedation that leads to unconsciousness in dying patients”), abortion for failed contraception, and prescribing birth control to adolescents without parental consent. The vast majority of physicians (86%) also felt, however, that they are still obliged to present patients with all of the options when they object to a medical procedure, and to refer the patient to other physicians who do not have the same objections (71%).

The religious backgrounds of physicians—measured by religious service attendance, religious affiliation, and measures of intrinsic religiosity—influenced how physicians answered these questions. Physicians who were male, religious, and had personal objections to clinical practices were less likely to believe that doctors must present patients with all the options and to provide referrals when they had objections.

When generalized to the US population, Curlin argues that these findings indicate that 14% of patients—more than 40 million Americans—may have physicians who do not believe they need to present patients with all of the options when they personally object to a medical treatment. Nearly 29% of patients—close to 100 million Americans—may be cared for by physicians who do not believe they must refer patients to other providers in such situations.

These numbers should give us pause. ...