Advancing a Free Society

A Step Backward for Freedom of Conscience

Tuesday, March 1, 2011

By Michael W. McConnell and Nathan Chapman

In May 2009, President Barack Obama delivered the commencement address at Notre Dame, declaring a commitment to “honor the conscience of those who disagree with abortion, and draft sensible conscience clauses.” Last week, however, the Administration released new regulations that watered down prior protections, calling them “overbroad” and “unclear.” By deleting the definitions of key statutory terms, the Administration certainly made the new conscience regulations less broad, but they also became even less clear. Now health care workers must rely on low-level federal bureaucrats to decide whether their claims of conscience are protected, on a case-by-base basis. Good luck with that.

In Roe v. Wade and Griswold v. Connecticut, the Supreme Court extended constitutional protection to abortion and birth control not because those practices are virtuous, ethically appropriate, or in the public interest, but because the decision about their morality is private. When medical, scientific, religious, philosophic, legal, and other authorities are divided on a question that is so intensely personal, the Court told us, the government may not decide when life begins and impose that answer with the force of law. That privacy rationale implies a broad freedom of conscience for relevant health care workers. The state may no more use the force of law to resolve these moral questions for doctors, nurses, or pharmacists than it may for patients or couples. The government may not decide the moral questions, either way.

Congress has consistently recognized the importance of conscience in this area, with the support of both parties. Since the 1970s, Congress has enacted a number of statutes designed to protect the religious and moral convictions of those who provide health care. The statutes forbid recipients of federal funds from coercing healthcare providers to violate their consciences, or discriminating against providers because they do or do not participate in morally contentious services. Some of the statutes specifically apply to abortion and sterilization, but the broadest guarantees that no “individual shall be required to perform or assist in the performance of any part of a health service program or research activity” funded by the federal government if doing so “would be contrary to his religious beliefs or moral convictions.” Congress’s intent is plain: no one may be coerced in violation of his or her conscience with respect to any health care funded by the federal government.

In 2008, the Bush Administration adopted regulations designed to clarify and enforce the federal health care conscience statutes. In keeping with the broad statutory language and the interpretive canon that civil rights statutes should be construed broadly to effect Congress’s intent, the regulation provided definitions for some of the key statutory language, reading it to protect the conscience rights of all those who participate in the provision of healthcare services funded by the federal government -- not just physicians or other elite professionals.

Last week, the Obama Administration revoked those regulations, removed provisions requiring funds recipients to commit to conscience protections in advance, and substituted a vague procedural right to case-by-case evaluations of conscience claims. Perhaps the most ominous signal is quietly tucked into the comments, which focus almost exclusively on abortion, without acknowledging the broad individual conscience rights Congress provided in for “any part of a health service program or research activity.” One particular area of importance is the ability of pharmacists not to be forced to provide pills that they believe to be abortifacients. The comments imply that this manifestation of conscience is no longer protected—even where the pills are easily available from someone else. This will drive many pro-life persons out of the pharmacy profession.

The bureaucrats who will adjudicate conscience claims are left to conclude that the “unclear” and “potentially overbroad” Bush definitions have been rejected in favor of a narrow interpretation of federal health care conscience rights. To leave these important questions to case-by-case decisionmaking is a cowardly and unprincipled way to deal with an issue of broad applicability and importance. If the Administration believes that certain claims of conscience are too fringe or extreme to be protected, it ought to tell us what they are and why. It should not bury the claims in a morass of bureaucratic uncertainty.

Ultimately the uncertainty about the scope of conscience rights generated by the new regulations hurts us all, whatever our position on controversial healthcare services. They leave the recipients of federal healthcare funds with less information about their legal responsibilities. They leave healthcare personnel to assert their religious and moral objections without knowing whether they will meet with push-back or outright discrimination. And they leave patients unable to count on having healthcare providers who are free to do what they think is right. In the words of the Supreme Court’s decision upholding the abortion right, “liberty finds no refuge in a jurisprudence of doubt.”

(photo credit: Kojach)