Thanks to the leaked opinion in the Dobbs case, abortion “rights” have become a hot topic on the left. But what about the rights of health care workers to refuse to abort babies? Or to refuse participation in other referrals or procedures (such as euthanasia or gender reassignment surgeries) to which they object on moral or religious grounds?
Under a proposed rule removal by the Biden administration’s Health and Human Services Department (HHS), health care workers will have little recourse if their medical school, employer, or state insists that they participate in procedures or referrals to which they object. The rule in question has been a political football for the last four presidential administrations, but the current action on the part of HHS is potentially more extreme than the actions taken by even the Obama administration, and it threatens to leave federal conscience protections — which are required by federal law—without enforcement.
If Republicans sweep the midterm elections in November, they should overturn this decision and force all future administrations to defend conscience rights for doctors and nurses.
Congress first established conscience protections for medical providers in the Health Programs Extension Act of 1973 — passed less than six months after the Supreme Court announced its opinion in Roe v. Wade — and has subsequently passed numerous similar provisions. The current protections are all tied to federal spending and effectively make it illegal for any health care providers receiving federal funds (which includes nearly all health care providers at this point) to require participation in or referrals for abortion or assisted suicide.
Using its spending power as a means of extending its control well beyond the limits of Article I of the Constitution is a common practice, but not one that affords Congress much direct control. In this case, Congress hasn’t even bothered to establish an enforcement mechanism. Health care providers receiving federal funds cannot require participation in an abortion, but if they do so in violation of law, the consequences are unspecified, as is the enforcing authority.
Trump and Biden Administrations’ Actions
The last several presidential administrations have written regulations intended to bring clarity to how federal conscience protections will be enforced, and to whom complaints should be made. In 2018 the Trump administration strengthened related regulations after an astronomic jump in the number of conscience cases filed with HHS, apparently as a result of an information campaign — ensuring that doctors and nurses were aware of their rights under law — and a sense that the Trump administration would actually enforce the law.
The Biden administration has decided to rescind the 2018 regulation, and it currently sits with the Office of Information and Regulatory Affairs (OIRA) for review and discussion. We should expect the rescission to continue, although we don’t yet know if the Biden administration expects to replace it with a weaker rule or simply leave conscience protections without any clear enforcement mechanism.
Congress has undoubtedly been sloppy by failing to include any real protections or penalties in its conscience provisions, but it is the responsibility of the executive — as the enforcer of the laws — to meet those shortcomings with reasonable procedures to ensure that the laws are followed, especially when there are federal tax dollars on the line. And there’s evidence that those laws are not being followed, that doctors and nurses are being forced to participate in abortion and sterilization procedures against their moral and religious objections.
Doctors and Nurses Forced to Act against their Conscience
The Committee on Ethics for the American College of Obstetricians and Gynecologists explained in 2007 and reaffirmed in 2016 the following position on abortion and medical care:
Some experts have argued that in the context of pregnancy, a moral obligation to promote fetal well-being also should justifiably guide care. But even though views about the moral status of the fetus and the obligations that status confers differ widely, support of such moral pluralism does not justify an erosion of clinicians’ basic obligations to protect the safety of women who are, primarily and unarguably, their patients.
While no one is arguing about the responsibility of doctors to attend to the safety of their adult patients, the same statement makes quite clear that this duty of care is based upon the well-being of the patient “as the patient perceives it” — which not too subtly includes abortion. So, in case you missed it, the official position of the trade organization for obstetricians and gynecologists is that moral and religious objections to abortion are “moral pluralism,” and they mean that in the most euphemistic and pejorative sense. Meanwhile, abortion is treated as the norm.
Doctors and nurses are paying attention to this kind of pressure. A 2019 survey (replicating a 2009 survey) of more than 1,500 nurses and physicians connected to Christian professional organizations found that 76 percent of respondents believed pressure to compromise their moral or religious beliefs had increased over the course of their professional careers.
More than half of respondents believed that health care professionals face discrimination for refusing to participate in procedures for which they have moral or religious objections, and 23 percent believed that they had personally been subject to discrimination for their moral or religious beliefs. Of the 20 percent of respondents who claimed that they had decided against pursuing a career in a particular medical specialty because of potential moral and religious objections, the overwhelming majority (80 percent) identified obstetrics and gynecology.
Doctors and Nurses Cannot Bring Suit
For health care providers who have been forced to act in violation of their moral or religious beliefs, the laws and their current enforcement leave few options for recourse. As noted in the background to the 2018 conscience rule passed by the Trump administration, “In lawsuits filed by health care providers for alleged violations of certain of these laws, courts have generally held that such laws do not contain, or imply, a private right of action to seek relief from such violations by non-governmental covered entities.”
So, in most cases, a doctor or nurse pressured to participate in a morally or religiously objectionable procedure cannot bring suit. That leaves enforcement to the federal government, which, under the Biden administration, has already shuttered the Conscience and Religious Freedom Division within the HHS Office for Civil Rights (OCR) and is pushing a heavily pro-abortion agenda instead.
Medical conscience concerns are too serious to be allowed to fluctuate according to the whims of the current presidential administration. Everyone knows that there’s a deep divide between the American people on the matter of abortion, and a growing divide that includes matters like euthanasia and transgender surgeries.
Doctors, nurses, and medical students ought not be required to participate in those procedures or referrals for those procedures simply by virtue of their station. This is not a matter where religious medical workers should need to claim a special exemption: abortion and euthanasia are clear violations of the Hippocratic Oath, and a perfectly reasonable person can believe that they are outside the scope of health care.
The track record for cross-sex hormone therapies and reassignment surgeries is also weak when compared to the “do no harm” standard. On a defined and short list of morally contentious concerns, medical students and workers ought to be afforded reasonable conscience protections.
States Could Do More Than Federal Government to Protect These Rights
If the Dobbs leak is consistent with the final decision of the Supreme Court, then state legislatures will be more relevant to the matter of abortion than at any time in the last 50 years. State legislatures should similarly recognize their authority to protect health care workers and to ensure that they are informed of any rights and enforcement procedures provided by state law.
Unlike the federal government, states are not limited to protecting medical workers by merely withholding funds: they can even use criminal law to protect the conscience claims of doctors, nurses, and medical students. As states rediscover their powers under our federal system, they should protect both unborn babies and health care workers alike.
Given its reaction to the Dobbs leak, the current Democrat-dominated Congress is not likely to be of much assistance in the near term. But if Republicans gain a majority in the midterm elections, they should begin adding clear enforcement mechanisms to existing federal conscience protections.
They can start with strengthening the Weldon Amendment, which has been included as part of congressional appropriations for health care for many years. Congress should use the 2008 and 2018 conscience rules as a template for enforcing conscience protections. Those who violate those long-standing protections should, at the very least, lose their access to federal funds.