500 Words About the Medical Conscience Rule

compassHave you heard about the governmental approval of a new medical “conscience protection” rule?  It allows health care workers to opt out of administering any form of medical care they feel is objectionable on moral or religious grounds. Hmm…sounds good in theory. People shouldn’t be forced to do things they find objectionable, should they?

A press release on the Department of Health and Human Services Web site says the law will “protect health care providers from discrimination.” DHHS secretary Michael Leavitt said that doctors have a duty only “to provide care that they are comfortable providing.”

But religion is a discussion hotbed and healthcare is a hot button on the front burner of that hotbed and I have a few questions and a somewhat queasy feeling about this rule.

The goal of this rule, supposedly, is to make sure doctors who are firmly against abortions aren’t forced to perform them. However, the new rule also permits emergency room workers to withhold information from rape victims about access to emergency contraception. It also allows doctors in federally-funded clinics to refuse to tell a pregnant woman that her fetus has a severe abnormality.

The U.S. Conference of Catholic Bishops praised the new rules, saying medical workers “should not be required to take the very human life they are dedicated to protecting.” The rule is scheduled to take effect the day before President Bush leaves office.  Coincidence?  Sure, like cops with white powdered sugar on a dark colored uniform.

But a large number of medical groups oppose the rule.  Wacko fringe groups?  Not quite.   The American Medical Association, the American Nurses Association, the American Academy of Family Physicians, the American Academy of Pediatrics, and 27 state medical associations. Democratic House Representatives Diana DeGette (Colorado) and Louise Slaughter (New York ) plan to introduce a Congressional resolution rejecting the Bush administration’s last-minute rules.

Perhaps they have questions like me.  Perhaps they, too, are the teensiest bit afraid of Dr. Government.  Perhaps they are wondering:

Does the law mean a doctor can refuse to treat someone who is gay? Or refuse to prescribe medications for someone who is gay and has HIV because they feel that homosexuality is wrong?

Can care be refused to someone who overdosed using illegal drugs because the doctor doesn’t approve of drug use or of illegal activities?

How about refusal of treatment of an unwed mother because they disapprove of premarital sex or having children out of wedlock?

Wait a second! What if the doctor is anti-gun? Does the law permit withholding treatment to someone who was injured by a gun?  What if it was the patient’s own gun that went off when he was cleaning it?

Should medical professionals be permitted to refuse to treat a member of any particular group who they deem as immoral?

Of course not. This is a dicey, ill-conceived last minute plan to slip in a policy that makes sense to some people on isolated religious grounds but the risks if its implementation are too great and far reaching.


Dr. Brett Kinsler is a chiropractor practicing in Rochester, NY who does not support the conscience rule….and no, wiseguy, this does not count as part of the 500 words.


  1. Michael Valentino said,

    December 26, 2008 at 8:57 am

    All very good points Brett. There are many lines which can be easily blurred. In theory this is a good law but it seems way to vague. My personal opinions should come second to caring for someone in need.

  2. December 26, 2008 at 2:23 pm

    Absolutely, Michael. I think the intentions of the law are clear but it’s actual execution is certainly vague, as you note.

  3. cmnacnud said,

    December 27, 2008 at 12:59 am

    I think that everyone should have liberty to do or not do as they will, of course there are consequences, that are not, and should not always be provided by law. In regard to this issue it’s too late we already have the government as well as insurance companies telling us what we can and can’t do.

    In my opinion forcing someone to perform an abortion is just as bad as telling someone you won’t treat them because they are gay. If a treatment is in high demand because there are so few who will do it, there will be incentive for people who want the money to do it.

    If you are hired to do a job the job description should be clear enough to lay out what you’re expected to do. In any other job if you fail to perform your required duties you’re fired. You get a bad reference and no one will hire you. The same should work for medical establishments. If you want to call the shots you should be allowed, just go into private practice. The government shouldn’t be allowed to discriminate, but when our fathers fought for freedom they didn’t just fight for ours, they fought for everyone’s.

    If a doctor wants to set up a private practice for only white supremacists. I think that’s his choice, and the consequences will happen. I hope that people would boycott and put him out of business. But our government should and can not force him to change his belief, only truth can do that. If a doctor wants to not perform an abortion then they should work for a clinic (if there is one) that states that they don’t. Then people seeking one shouldn’t go to them asking for one.

    Rights aren’t granted by law, but protected by them. Health isn’t a right. But the choice to be as healthy as you can is. Last I checked, choosing how you practice your religion as you see fit is a right protected by law. Even if I disagree with that religion. If we don’t protect a doctors right to practice according to conscience then who will protect our right to practice chiropractic when others view it as wrong?

    These comments are just an initial reaction. I hope it may open a discussion.

  4. December 27, 2008 at 10:54 am

    If the law were simply about abortion and the right not to perform one, I would be with you 100%. It is the lack of restriction that makes me cringe with the passage of this law. How can we possibly coordinate “Primum non nocere” (first do no harm) with the ability for emergency medical workers to ignore population subgroups they don’t like or withold potential treatment information from people whom they do not approve?

  5. cmnacnud said,

    December 29, 2008 at 12:14 am

    Wow. I wrote a huge reply and then decided to read the original documentation provided. I have to ask; did you read it before you posted this? Your exact concerns were raised in the process of creating this rule and addressed. I’ll cut and paste pertinent excerpts, but I recommend reading the full document including the comments and replies.

    “Many Comments stated concern that the proposed regulation could serve as a pretext for health care workers to claim religious beliefs or moral objections… in order to discriminate against certain classes of patients…”

    “It is important to emphasize that the health care provider conscience protection provisions have existed in law for many years, and that this regulation only implements these existing requirements. As a result, there is nothing in this regulation that newly permits the types of actions described… It is also important to emphasize that the health care conscience protection laws exist as one part of a number of federal laws that address discrimination on a variety of grounds, and that the actions described in the hypothetical situations that violate federal civil rights laws, continue to violate
    federal civil rights laws.”

    In other words these laws have been on the books for 10+ years and don’t conflict with anti-discrimination laws in fact they enhance them by not allowing the federal government to discriminate against physicians based on their religious beliefs.

    “To the extent there are actual conflicts between any of the health care conscience protection laws and federal civil rights laws, an entity would be required to comply with federal civil rights requirements.”

    “…religious and faith-based organizations have a long tradition of providing medical care in the United States, and they continue to do so today–some of these are among the largest providers of health care in this nation. Such
    institutions may have traditions of issuing clear public guidance which informs the members of their workforces, including physicians having
    privileges at their institutions, of the parameters under which they should operate in accordance with the organization’s overall mission and ethics. 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 and regions of the country.”

    I’d comment on the “Primum non nocere” issue, but that’s entirely different, and for a different post. This one’s already too long.

  6. December 29, 2008 at 8:37 am

    Yes, I read it. That’s what frightened me about this rule! I urge you to be careful if you’re going to cherry-pick from the comments section. You might find scary gems such as:

    “he Department is concerned 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…Such developments also promote the mistaken belief that rights of conscience and self-determination extend to all persons, except health care providers.”

    Mistaken belief? You may be thinking of this too much from a chiropractic office provider’s point of view and not from someone working in emergency medicine. To an extent, rights of conscience should not apply to healthcare workers simply by nature of the work performed.

    “The ability of patients to access health care services, including abortion and reproductive health services, is long-established and is not changed in this rule. Instead, this rule 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.”

    Yeah, this is so vague I can practically see my hand through it when I hold it up to the light.

    With all of these comments, they might as well have said, “This is a wolf. The wolf already existed. We dressed it in sheep’s clothing but we didn’t have to. We spent hundreds of thousands of dollars on that clothing but, really, don’t worry about it. There’s no hidden motive. Promise.”

    By the way, I am well aware of some of the controversy surrounding the phrase “primum non nocere” but, again, we must think of this rule in an emergency medical sense and the withhold of care, not in the non-urgent clinical office sense.

  7. cmnacnud said,

    December 29, 2008 at 12:38 pm

    I don’t understand your concern. This rule doesn’t trump any civil rights laws. In fact this rule only states that the government can’t discriminate it doesn’t say anything about what doctors can or can’t do. The laws this rule is based on, allow providers to opt out of providing a service. If they opt out, they opt out for everyone not for only a select group of people. They allow providers to object to a treatment, not a person. We do that all the time in health care. It’s a way of advancing medicine. We adopted rules to not test on humans because it was thought to be immoral. I am morally opposed to most spinal fusions because the risks don’t outweigh the benefit in my mind. In fact, if we didn’t make moral/judgment calls you wouldn’t need doctors, just computers.

    You limit the statement with “To an extent”, but you stated that, “rights of conscience should not apply to healthcare workers simply by nature of the work performed.” I disagree. I believe that rights of conscience should be even greater for healthcare workers. If you take conscience out of the picture then what is left? The uncaring, unfeeling, science that lacks knowledge and treats people as numbers.

    Emergency doctors make moral/religious calls all the time because they honor life enough to fight for it, even when the text book says they shouldn’t. They save people by choosing to follow their moral or religious beliefs. Those doctors should have greater protection for making moral calls not less. If doctors are expected to make the hard calls, but will be destroyed no matter what decision they make then no one will become a doctor. It’s not worth the risk. That’s what’s happening to OBs. No one wants to be an OB because their damned if they do and damned if they don’t. They’re losing “rights of conscience.”

    Bigots cannot hide behind this rule because this rule doesn’t change any non-discrimination laws. Bigots will do anything they think they can get away with despite any law, because values come from within, not from a law. It is still illegal for a doctor to discriminate based on individual traits, and if caught they will be prosecuted.

    I can’t think of a single incidence not already protected by another law where a doctor could discriminate based on this rule. If you can, please provide an example so that I can take it into consideration.

    You asked some questions in your initial post. I’d like to answer them.

    “Does the law mean a doctor can refuse to treat someone who is gay? Or refuse to prescribe medications for someone who is gay and has HIV because they feel that homosexuality is wrong?” -NO-
    “Can care be refused to someone who overdosed using illegal drugs because the doctor doesn’t approve of drug use or of illegal activities?” –NO-
    “How about refusal of treatment of an unwed mother because they disapprove of premarital sex or having children out of wedlock?” –NO-
    “What if the doctor is anti-gun? Does the law permit withholding treatment to someone who was injured by a gun?” –NO-

    This rule does not allow any of those scenarios nor do the laws this rule was based on.

  8. December 29, 2008 at 2:59 pm

    What I meant is that there are far more scenarios in healthcare that may require a suspension in moral beliefs than in other fields. Do I think we should be automatons with no right to our own beliefs? Of course not. Medicine is a demanding field but it should not require the submission of your entire soul. Do I think medical professionals should not be allowed to act, or refuse to act, based on their own beliefs? Of course not…providing those actions do not result in harm to the patient.

    This rule, which so blatently produces a dangerous blend of religion, medicine and politics, has the intent to inhibit and undermine a patient’s ability to make informed decisions about their healthcare. What the ruling will do is prevent patients from from receiving all of the legal options available to them in their individual health situation.

    If you think this rule provides nothing other than what the Civil Rights Act of 1964 provided, then really why bother?

    You asked for a discriminatory scenario based on this rule? How about a patient in a rural area who requires termination of an ectopic pregnancy? She is offered no other options, no referral and no treatment. Death or infertility sounds like “harm” to a patient if you ask me. This has happened and this rule enforces it.

    But I won’t worry too much — it sounds like Obama will likely spend the time and money required to reverse the rule before it becomes enacted. Good thing the government has lots of extra money and time to spare.

  9. cmnacnud said,

    December 29, 2008 at 7:41 pm

    In a community like that you don’t find out about an ectopic pregnancy until it’s an emergency. So, you’re saying that a 16 year old girl brought in to her rural doctor with life threatening hypotension, severe acute abdominal pain, nausea, vomiting and vaginal bleeding would be sent home without the testing required for diagnosis of ectopic pregnancy, treatment, a referral, or even an adequate diagnosis. I don’t know very many one doctor towns that have the lab and equipment to diagnose an ectopic pregnancy let alone perform the surgery. The most any doctor in that situation could do, would be to suspect an ectopic pregnancy; it would be malpractice not to refer to a facility for testing to get a final diagnosis. You can’t invoke this rule’s protection unless there was a procedure you were refusing to perform, and there would not be a procedure to perform unless a diagnosis was given. Unless of course you just refuse to perform blood work pregnancy tests and ultrasounds all together.

    I lived in a town of about 2000 people. We didn’t have a hospital, we had a clinic, and there’s no way that situation would have played out, even if the doctor refused to treat that wouldn’t be until after proper diagnosis. An emergency helicopter or at the very least a fast ambulance ride would have gotten her to the nearest hospital where she would be given adequate care. I’m not saying that situation couldn’t happen or that it doesn’t currently, but you’re talking malpractice that is already protected by other laws. Beyond that, the doctor would treat the symptoms such as the hypotension and the bleeding even if refusing to perform the abortion. If he refuses to treat the patient for being an unwed mother then he is in violation of non-discrimination law.

  10. cmnacnud said,

    December 29, 2008 at 7:41 pm

    You haven’t addressed the issue that this rule doesn’t tell a doctor what they can or can’t do. All this rule relates to is government discrimination regarding funding. The laws that this rule is based upon are not broad enough that they allow discrimination; If they did they would be in violation of federal civil rights law.

  11. cmnacnud said,

    December 29, 2008 at 7:42 pm

    The only issue that seems to apply that you have given is the possibility that this may “undermine a patient’s ability to make informed decisions about their healthcare” by allowing doctors to not inform them of all the legal options. (Boy it would be nice if that were a reality. Can you imagine how much chiropractic would grow if medical doctors were required to tell patients about us as an option?) The only place I can really see concern or debate is with respect to abortion, which is why this comes up anyway. So, to address it; an abortion is generally an elective option and not medically necessary except when the life of the mother is in question. Doctors don’t have to recommend elective care. I don’t know of one but there may be a religion out there that does not support abortion to save the mother. If that were a likely possibility then I would be concerned.

  12. December 29, 2008 at 9:48 pm

    There are doctors who would view the treatment of the ectopic pregnancy as a fetal termination and thus would refuse to treat it on religious grounds. Under this law, no further referral or explaination of options are necessary.

    I’ve often thought that a great turnaround in the chiropractic profession would occur when a spine surgeon is sued for malpractice upon failing to tell a patient chiropractic spinal manipulation would have been a viable option.

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