HHS Increases Doctors' Conscience Protection

Special Report - January 2, 2009
Half of the physicians in a recent national survey said they support a newly enacted U.S. Department of Health and Human Services (HHS) rule that strengthens the legal protections for health care providers who refuse to participate in services, such as abortion, that violate their moral, religious, and ethical convictions. The final HHS rule—which was published in the Federal Register on December 18 and takes effect January 20, 2009—is intended to increase awareness about and compliance with federal laws that protect the right of conscience for health care providers. According to the HHS, the final rule does three things: 1) it “clarifies that nondiscrimination protections apply to institutional health care providers, as well as to individual employees working for recipients of certain HHS funds;” 2) “requires recipients of certain HHS funds” to certify their written compliance with the three federal laws that protect the right to conscience for health care providers; and 3) designates the HHS Office for Civil Rights to handle complaints and conduct investigations of noncompliance. The rule defines “health care entity” as “an individual physician or other health care professional, health care personnel, a participant in a program of training in the health professions, an applicant for training or study in the health professions, a post graduate physician training program, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, laboratory or any other kind of health care organization or facility.”

The preamble to the final rule explains that the HHS issued the rule over its concern “about the development of an environment in sectors of the health care field that is intolerant of individual objections to abortion or other individual religious beliefs or moral convictions.” According to the HHS, the rule does not restrict patient access to abortion but simply “implements federal laws protecting health care workers and institutions from being compelled to participate in, or from being discriminated against for refusal to participate in, health services or research activities that may violate their consciences, including abortion and sterilization, by entities that receive certain funding from the Department.”

In a survey conducted December 22-29 by HCD Research, 49 percent of doctors said they supported the HHS rule, while 33 percent opposed it, and 19 percent said they had no opinion about it. When asked whether a “medical practice should be guided by the moral values of the health care provider,” 67 percent of the doctors answered “yes,” while 33 percent said “no.” In addition, 36 percent of doctors agreed that “government should be involved in protecting health workers who refuse to participate in care they find ethically, morally or religiously objectionable,” while 31 percent disagreed. Nearly 40 percent of the physicians in the survey agreed that, “Doctors and hospitals have the right to refuse to perform any procedure that is inconsistent with their personal beliefs,” while 29 percent disagreed. Only 22 percent of physicians in the survey agreed that, “Funding should be cut for any institution/organization that does not accommodate health workers who refuse to provide care that they find ethically, morally or religiously objectionable,” while 43 percent disagreed with this statement.

“Many health care providers routinely face pressure to change their medical practice – often in direct opposition to their personal convictions,” said HHS Assistant Secretary of Health, Admiral Joxel Garcia, M.D., in a December 18 press release announcing the final rule. “During my practice as an OB-GYN, I witnessed this first-hand. Health care providers shouldn’t have to check their consciences at the hospital door. Fortunately, Congress enacted several laws to that end, but too many are unaware these protections exist.”

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