(by Sarah Schaefer)
July 2, 2013
The need for conscience protection in health care is rapidly increasing as the Obama administration mandates that most insurance plans cover so-called “preventive care” services, which include abortifacient drugs, contraception and sterilizations.
Additionally, cutting-edge biotechnology has developed all sorts of methods, drugs and procedures that, for example, allegedly permit people to change sexes, conceive children outside of sexual intercourse, and manipulate their genetics to produce more desirable traits.
The growing prevalence and insurance coverage of these procedures and services is an immense concern. However, the urgent issue is the lack of conscience protection for health care professionals who have moral or religious objections to participating in these procedures.
For many of our physicians, nurses and pharmacists, these developments pose a crisis of conscience in which they are forced to choose between their religious beliefs and their career.
It is morally illicit to perform abortions, sterilizations and in-vitro fertilizations as well as distribute contraceptive and abortifacient drugs. It is also morally illicit to pay for, or refer people to others for those services or products.
The growth of these procedures under the auspices of legitimate medicine puts the health care professional who wants to adhere to Church teaching in a seemingly lose-lose situation: participate in these acts and violate her beliefs, or decline and succumb to the employment discrimination charges and other penalties that, under current law, could likely result.
No health care professional should have to leave her conscience at the door when she goes to work. Thus, legislation is needed to provide her with the right to decline to participate in these services and procedures.
Despite the gloomy horizon regarding the high demand for these morally problematic procedures, there are several federal laws that provide conscience protections for abortions and sterilizations.
The three most notable are the Church, Coates/Snow and Hyde/Weldon amendments.
The Church amendment is the main legislative protection. It grants individuals and federally funded institutions the right to object to sterilization or abortion procedures without fear of discrimination or liability. Coates/Snow adds protection for involvement in abortion training, and Hyde/Weldon prohibits discrimination for refusing to refer or pay for abortions.
These statutes are a good start — but only a start. They do not provide for the integral “private right of action” that would allow victims of conscience discrimination to bring a case to court. Some provisions only address discrimination by governmental entities. And, furthermore, the Hyde/Weldon amendment must be renewed annually as an amendment to the Labor/HHS appropriations bill, thus making it vulnerable to legislative changes.
Their most considerable shortcoming, however, is that they do not cover anything beyond abortion or sterilization procedures.
Just this past March, Congresswoman Diane Black (R-Fla.) introduced the Health Care Conscience Rights Act, H.R. 940, which would amend the Patient Protection and Affordable Care Act to provide for greater conscience protections. This bill is being considered right now in Congress.
The Health Care Conscience Rights Act is a major step for conscience rights in federal law. It expands the “religious employer” exemption in the U.S. Department of Health and Human Services contraception mandate to protect all individuals and employers from being required to pay for contraception insurance. Moreover, it provides for a private right of action and codifies the Hyde/Weldon amendment, thus securing Hyde/Weldon’s federal discrimination and liability protections. It also extends these protections to the full range of health care providers.
This legislation is heartening, and has received strong support from our bishops. This archdiocese is currently sponsoring a postcard campaign to encourage our congresspersons to support this legislation, which has been introduced in both houses.
At the Legislature
Minnesota law contains provisions that allow health care professionals and institutions to refuse to participate in abortions (Minn. Stat. Ann. § 145.414 and 145.42). These statutes also shield from any liability or discrimination that may result from refusal to participate.
Yet, most states, Minnesota included, are still lacking conscience protections for “preventive care” services, namely contraceptives and abortifacient drugs. Thus, many pharmacists are still vulnerable to conscience discrimination while the administration continues to whittle away at contraception regulations. Just recently, for example, Plan B One-Step, the “morning after” emergency contraception pill, became available over the counter with no age restrictions.
Some Minnesota legislators, however, are making efforts to address this concern.
In April, Sen. Michelle Benson (R-Ham Lake) introduced a conscience rights amendment, entitled the Right of Conscience in Health Care Protected, to the Omnibus HHS Finance Bill (2013 H.F. 1233).
This proposed legislation is similar to Illinois’ Health Care Right of Conscience Act, which is an ideal example of state conscience protections. The amendment as introduced protects health care professionals from discrimination and liability for refusing to participate in any potentially objectionable procedure, except for providing emergency contraceptives to sexual assault victims as required by Minnesota law.
Though the Right of Conscience in Health Care Protected amendment was not adopted, it did receive some support and will hopefully be reintroduced with greater success.
Faith in the public square
Conscience protection is not about hindering access to health care. It is about respecting our right to act consistently with our consciences in the course of our employment.
Efforts to pass conscience protection legislation will require faithful participation in the face of political adversity. As Philadelphia Archbishop Charles Chaput recently reminded us, we are called to love our Catholic faith “enough to struggle for it in the public square.”
It is our collective witness to the sanctity of life that will ensure our progress toward a greater respect for conscience.
Sarah Schaefer is a law clerk at the Minnesota Catholic Conference and entering her second year of studies at the University of St. Thomas School of Law.