Story by Ty Smith, Managing Editor
Photo Courtesy of Canva
On May 2, 2019, the Department of Human & Health Services’ Office for Civil Rights issued a strong conscience protection rule, in order to protect both people and institutions from discrimination based on them following their conscience. On November 6, a federal judge voided the rule from the Trump administration, issuing a 147-page decision on the issue.
As someone who strongly supports freedom of conscience in all cases, I would usually be the first person to support a conscience rule in healthcare, but believe it or not, I’m actually celebrating the strike down in this particular case.
Protecting conscience is good. Ensuring that social workers aren’t forced out of their field and denied the ability to help people because they have ethical objections to abortion is undeniably good, just like it’s undeniably good to protect a doctor who refuses to circumcise a child because they believe it’s a violation of the infant’s body. People deserve the right to their conscience, and the moment we take away those protections, someone can be forced to do anything, or else be forced out of their field.
This, however, should be balanced against the need for individuals to receive healthcare that they need. It’s a delicate, fragile balance, and one that the Trump administration rule destroyed both by dramatically widening the scope of protection and greatly increasing the severity of punishment if that rule were to be violated.
Under the rule, practitioners and institutions would be able to deny patients care and refuse to give them options to go elsewhere. An ambulance driver who learned their patient was being rushed to a hospital because of a ruptured ectopic pregnancy and is going to have the baby aborted because of that, could legally force the patient to get out on the side of the road and leave her. A Jehovah’s Witness could refuse to give an emergency skin graft or blood transfusion due to their religious beliefs, and refuse to refer the patient to any other surgeon in order for them to receive the life-saving operation.
In both these cases, the individuals refusing to provide service should have been given the right to follow their conscience, but because the rule stated they were allowed to refuse referral to someone else, the patients could die. This also applies in other, less deadly cases. For example, doctors could refuse to screen for STDs because they believe that doing so encourages morally wrong behavior, thereby denying care critical to the patient’s sexual health. On a similar note, a doctor could refuse to allow a Jewish male to be circumcised because they believe it to be a violation of the boy’s integrity. Whatever the reason for the doctor’s refusal, the patient’s parents have been denied something they deem crucial to their boy’s spiritual health.
The punishment for failure to follow these rules would also have a chilling effect because a single violation of the HHS ruling would mean federal funding to the institution could be frozen entirely. This could spell disaster for any hospital or clinic who may disregard the ruling even once, and end up taking healthcare away from the thousands of people the institution serves.
If the Trump administration wishes to reinstate a conscience rule, which I support, they need to be more careful about it. Any conscience rule needs to protect the patient as well as the healthcare provider equally. Catholic hospitals should not be required to perform a tubal ligation, but they should be required to tell the patient where she can get that operation done. A Jehovah’s Witness surgeon should not be required to perform a blood transfusion, but it should be required there be someone on staff who will.
Where there is a refusal of service due to conscience, there should always be an alternative route given to the patient. Where that service is critical, there should always be a backup provider who can assist that patient. And when institutions fall foul of the rules, which they inevitably will, the sanctions should be strong enough to hurt, but not destroy the institution.
The balance of conscience and healthcare is a delicate thing. Conscience must be protected, but it must be protected in a way that is careful, balanced, and well reasoned.