Academic

Health Care Providers and the Conscience Exception

By Bridget Crawford

“I learn as much from my students as they learn from me.”  I’ve heard that line a few times (well … less frequently from law faculty members than from my friends who are secondary education teachers), and always suspected that the speaker overstated the claim.  I adjust my analysis after a great conversation with Pace Law School 3L Terrance DaRosa about the “conscience exception” in new regulations proposed by HHS.  I asked him if he’d be willing to write up his thoughts.  Here they are (posted with his permission):  

In what seems to be an increasing trend in Bush Administration health care policy of allowing doctors and pharmacists to subject patients to their ?moral? or ?ethical? views by allowing them to discontinue providing certain medical services, the Department of Health and Human Services is now proposing new Regulations ?that protects any individual health care provider or institution from being compelled to participate in, or from being punished for refusal to participate in, a service that, for example, violates their conscience.?

The prefatory part of the Regulation spends a lot of time discussing discrimination and religious freedom for health care providers, making it seem like there is a huge crisis in the provision of health care in America, whereby numerous health providers are being forced by the federal government to provide needed medical care to their patients because it violates their beliefs. In the Department?s Response to the Problem, it states that a ?trend that isolates and excludes some among various religious, cultural, and/or ethnic groups from participating in the delivery of health care is especially troublesome when considering current and anticipated shortages of health care professionals in many medical disciplines facing the country.? My response is that it does not matter how many people this new Regulation will ?help? become a health professional because they can now pick and choose what kinds of medical services to provide when his or her patients are being denied need care. An increase of health professionals who go into gynecology and refuse to provide abortions and related services in effect helps to foster a shortage of health care providers. Most people do not need to see health professionals who provide selective services they need the full range of services a specialty normally offers.

            Furthermore, the focus should not be on the views of healthcare providers, it should be on the needs of the patients. Health professionals fundamentally serve their patients and undertake an obligation to provide every kind of medical care that their specialty does. It is irresponsible government to place more obstacles in the way of patients seeking medical care, including women who are seeking an abortion. The government should not be allowed to put people?s health and lives at risk like this because of certain people?s subjective ?values.? Besides providing quality medical services, a doctor?s first obligation is to do no harm. The government is effectively helping doctors to harm women with this Regulation. If doctors seriously have a huge moral or ethical issue with providing abortions then they should not go into gynecology or pick an entirely different profession.

            The Bush Administration does not seem to create policies that are designed to help these children once they are forced to be born and their parents cannot afford to take care of them so it is selectively valuing certain aspects of life. Where does that leave these children? Are they to suffer with their parents in poverty? Will they be put in foster care? Will they be institutionalized a la Ceau?escuian Romania? Forcing women to have children seems to be immoral, cruel, and abhorrent. It also does not value family, whatever one feels that means.

            What is not surprising, but definitely troubling, is the media?s lack of attention on this issue. Equally as troubling, is the Democratic Party?s lack of attention to this issue despite the existence of strong statements in the Party?s platform valuing a woman?s right to choose. Their lack of strong public comment seriously calls this commitment into question.

            I do know one thing for sure: the American people deserve better from their government and their doctors.  - Terrance DaRosa

-Posted by Bridget Crawford

Full post as published by Feminist Law Professors on August 29, 2008 (boomark / email).