SUBMITTED VIA EMAIL AND FEDEX
April 7, 2009
Denise M. Burke
Vice President of Legal Affairs
Americans United for Life
310 S. Peoria, Suite 500
Chicago, IL 60607
Office of Public Health and Science
Department of Health and Human Services
Attn: Rescission Proposal Comments
Hubert H. Humphrey Building
200 Independence Avenue SW, Room 716G
Washington DC 20201
To whom it may concern:
On March 10, 2009, the U.S. Department of Health and Human Services (HHS) proposed to rescind the December 19, 2008 final rule entitled “Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Practices in Violation of Federal Law” (“the Rule”) and solicited public comment on the proposal.
Americans United for Life (AUL) is a non-profit, public interest law and policy organization whose practice areas include healthcare freedom of conscience. Since 1973, AUL has championed legislation providing comprehensive protection for healthcare freedom of conscience and has been involved in litigation to enforce and protect this fundamental right. In light of our commitment to and experience with healthcare freedom of conscience, we offer the following comments and urge HHS to retain the Rule which was intended to fully implement conscience protections enacted by Congress since 1973.
If any additional modification is necessary, we urge HHS to clarify the rule, and not rescind it, by adopting medically and legally appropriate definitions for medical terms in the Rule, as we first recommended in our September 22, 2008 Comments.
The Overarching Need to Protect Healthcare Freedom of Conscience
Often thought of as a contemporary problem, the issue of freedom of conscience was revered by our Founding Fathers. For example, Thomas Jefferson wrote, “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” Moreover, traditional western thought has understood that individual conscience is indispensable to appropriate action.
In the ongoing debate over the freedom of conscience of healthcare providers, misinformation and hyperbole abound. However, a full and fair debate of the issue requires an understanding that:
- Healthcare is not a commodity, it is service. Those in the field are not clerks or automatons, but serious professionals trained to provide specialized care. As professionals, they engage in decision-making that is informed by their intellects and their consciences.
- Conscience is subjective but not relative, and is defined by the individual through his/her religious faith, morality, and/or ethics. Conscience is applied to all actions and decisions and cannot be ignored or compartmentalized.
- Freedom of conscience is an American ideal. That is, conscience is the freedom from coercion (by the government or other individuals) to act against one’s will.
- Conscience is also a “check and balance” in a healthcare provider’s decision-making process. In the rapidly developing medical field, ethical challenges abound. We want our medical professionals to exercise ethical behavior (i.e., behavior in accord with his/her conscience).
Freedom of conscience protections affirm the need to provide quality care to patients and do not interfere with existing medical malpractice standards. They merely acknowledge that certain demands of patients, usually for procedures that are life-destructive and not life-saving, must not be blindly accommodated to the detriment of the freedom of healthcare providers.
Individuals and institutions do not lose their right to exercise their moral and religious beliefs and conscience once they decide to become healthcare providers. Nothing in the laws protecting healthcare rights of conscience prevent others from providing the healthcare service to which a conscientious objection has been made. Thus, there is no need to eviscerate or even limit the freedoms of healthcare providers to ensure access to comprehensive health care.
HHS Has Affirmative Duty to Effectuate Congressional Intent to Protect Healthcare Freedom of Conscience
Since 1973, Congress has repeatedly taken action to protect healthcare freedom of conscience and has continued to increase the number and scope of protections provided under federal law. In turn, HHS has the reciprocal and derivative responsibility to effectuate Congress’ clear intent by giving full force and effect to the laws duly enacted by Congress.
Laws protecting freedom of conscience permit healthcare providers to decline to participate in services or procedures to which they have a moral, religious, or other conscientious objection. Despite vocal claims to the contrary by opponents of the Rule, such protections are carefully designed to reconcile “the conflict between [religious] health care providers who provide care in accordance with their [religious] beliefs and the patients who want access to medical care that these providers find objectionable.”
A careful summary of Congressional action over the past 36 years demonstrates a clear and continuing intent to protect healthcare freedom of conscience.
Furthermore, the failure of HHS to maintain the Rule and ensure that federal laws protecting healthcare freedom of conscience are enforced could also ironically – given that abortion advocates are arguing for the wholesale repeal of the Rule – expose those who support and perform abortions to discrimination and negative actions such as the future denial of federal funding.
Congress first addressed the issue of conscience rights just weeks after the U.S. Supreme Court handed down Roe v. Wade. In 1973, Congress passed (by a vote of 92-1) the first of the Church Amendments (named for its sponsor, Senator Frank Church of Idaho). It provides that the receipt of federal funds through three federal programs – the Hill-Burton Act, Medicaid, and Medicare — cannot be used as a basis to compel a hospital or individual to participate in an abortion or sterilization procedure to which the hospital or individual has a moral or religious objection.
Interestingly, Supreme Court Justice Harry Blackmun, the author of the Roe vs. Wade opinion, endorsed this early federal conscience law as “appropriate protection” for individual physicians and some hospitals.
Later, in keeping with their express intent to protect the freedoms of healthcare providers, the Church Amendments expanded to include any individual or entity that receives federal funding under the Public Health Services Act, the Community Mental Health Centers Act, and the Developmental Disabilities Services and Facilities Construction Act.
Recent additions to the Church Amendments prohibit entities that receive funding under a biomedical or behavioral research program administered by HHS from engaging in employment discrimination against medical personnel who either perform abortion or sterilization procedures or who refuse to perform such procedure on moral or religious grounds.
Thus, while the majority of federal conscience laws are designed to protect those who object to participating in or providing abortions, these laws also safeguard the freedoms of those who perform (and otherwise support) abortions. Rescinding the Rule will, therefore, endanger many healthcare providers irrespective of their views on abortion and other conflict-ridden procedures.
By 1978 – just five years after Roe v. Wade and the enactment of the early Church Amendments, virtually all 50 states had followed suit and enacted conscience legislation in one form or another.
Later, in 1988, Congress adopted the Danforth Amendment (as part of the Civil Rights Restoration Act.) This amendment clarified that Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally-funded educational programs, was not to be construed to prohibit or require any individual or entity to provide or pay for abortion-related services.
In 1995, when the Accreditation Council for Graduate Medical Education proposed mandating abortion training in all obstetrics and gynecology residency programs, Congress responded by enacting a measure providing that any state or local government that receives federal financial assistance may not discriminate against healthcare entities that refuse to train, perform, refer for, or make arrangements for abortions.
The next year, Section 245 of the Public Health Service Act was enacted to prohibit the federal government and state or local governments that receive federal financial assistance from discriminating against individual and institutional healthcare providers, including participants in medical training programs, who refused to, among other things, receive training in abortions; require or provide such training; perform abortions; or provide referrals for, or make arrangements for, such training or abortions.
In 1997, Congress yet again revisited conscience protections for healthcare providers who decline to participate in abortions and other conflict-ridden procedures when it enacted the Balanced Budget Act of 1997. Congress then amended federal Medicaid and Medicare programs to exempt managed care providers under these programs from any requirement to provide, reimburse for, or provide coverage of a counseling or referral service if the managed care plan objects to the (requested) service on moral or religious grounds.
The effect of these provisions was to extend the protection of conscience laws beyond individual providers and some hospitals to companies that pay for care and to permit some federally-funded health plans – those with conscience objections – to refuse to provide counseling and referral for abortion-related services.
The most recent federal conscience protection, the Hyde-Weldon Amendment, was first enacted in 2005 and provides that no federal, state, or local government agency or program that receives funds in the Labor/Health and Human Services (HHS) appropriations bill may discriminate against a healthcare provider because the provider refuses to provide, pay for, provide coverage of, or refer for abortion. The Amendment is subject to annual renewal and has survived multiple legal challenges.
Notably, the Executive Branch – specifically the Department of Defense (DOD) – has also taken action to protection healthcare freedom of conscience. Existing federal law also provides conscience protections for military healthcare providers. Pursuant to DOD and individual service  directives, military healthcare providers may decline to participate, directly or indirectly, in medical procedures that they find morally or religiously objectionable. As with other rights of religious accommodation (in the military), this right is balanced against “military necessity” and the potential adverse affect on unit readiness, individual readiness, unit cohesion, morale, discipline, safety, or health. Moreover, any refusals to provide medical care based on religious objections are required to de disclosed in advance to the provider’s chain of command and to patients as the need arises.
DOD Directive (DODD) 6000.14, Patient Bill of Rights and Responsibilities in the Military Health System, provides, in pertinent part, that:
(1) A provider who disagrees with a patient’s wishes [as a treatment], as a matter of conscience, should arrange for transfer of care to another qualified provider willing to proceed according to the patient’s wishes within the limits of the law and medical ethics.
(2) Military treatment facilities and Tri-care [health insurance system for military dependents and retirees and their dependents] network providers and facilities shall disclose to patients… matters of conscience … that could influence medical advice or treatment decisions.
Thus, Congress along with the Executive Branch has consistently and repeatedly taken steps to protect healthcare freedom of conscience and has even expanded the scope of these protections.
Importantly, it is now the duty of the Executive Branch –including the Administration and HHS– to “take Care that the Laws be faithfully executed.” U.S. Const. Art. II, § 3, cls. 4. In short, this means giving full force and effect to the legal and policy determinations made by Congress – in this context, those embodied in a 36 year history of protecting healthcare freedom of conscience.
HHS also has the responsibility to give full force and effect to the U.S. Constitution which scrupulously protects individual liberties and has never been interpreted to require any individual or entity to provide, pay for, or otherwise participate in abortions or other conflict-ridden procedures.
Retention of Rule Avoids Aggravation of Current Healthcare Crisis
Protecting the freedom of conscience of healthcare professionals and institutions is necessary to avoid added stress on an already overtaxed healthcare system. Experts project that current shortages of physicians, nurses, and other healthcare professionals will worsen, failing to meet future requirements. Legal action and other pressure to compel healthcare providers to participate in procedures to which they conscientiously object and to eviscerate existing legal protections for conscience – such as the instant action to rescind the Rule – threaten to make an already dangerous situation disastrous. By forcing healthcare professionals to choose between conscience and career, we will lose doctors, nurses, and other healthcare professionals who are already in short supply, especially in rural parts of the country. We will also effectively bar competent young men and women, desperately needed, from entering these vital professions.
Hospitals, clinics, and individual provider offices will disappear if owners, board members, and providers are forced by law to provide procedures and services against their conscience in order to stay in business. Without a doubt, the health of the nation demands protecting individual freedom of conscience.
For example, the American Association of Medical Colleges (AAMC) projects an anticipated physician shortfall of 70,000 or more by 2025. Similarly, many analysts predict that all 50 states will experience a noticeable and significant shortage of nurses by 2015 – just six years from now.
To slow – and not exacerbate – these shortages, there is a need for comprehensive conscience protections and proper enforcement of existing federal and state laws. Protecting freedom of conscience does not ban any procedure or prescription and does not mandate any particular belief or morality. Freedom of conscience simply provides American men and women the guarantees that this country was built upon: the right to be free from coercion. Protecting conscience helps ensure that providers enter and remain in the healthcare professions, helping to meet the rising demand for quality healthcare. Failing to do so will compromise basic healthcare for the entire nation.
Appropriate Remedy is to Clarify or Modify, Not Rescind Rule
The Rule properly furthers Congress’s express intent to protect healthcare freedom of conscience and, thus, HHS has an obligation to maintain and enforce the Rule as implemented on December 18, 2009. However, should additional action or clarification be considered, we urge HHS to modify, not rescind the Rule.
Importantly, much of the purported controversy surrounding the Rule concerns whether or not the Rule would impede women’s access to a variety of contraceptive drugs and devices. Such arguments appear to have – at least in part – motivated the current action by HHS.
As we initially recommended in our September 22, 2008 comments to HHS supporting the initial adoption of the Rule, we recommend that HHS consider including medically and legally appropriate definitions – for terms such as “abortion,” “conception,” “contraception,” and “pregnancy” – in the Rule. Precise and simple definitions would dissipate some of the concern over the Rule, clarifying its scope and lessening the chances of unanticipated problems with its implementation.
Importantly, in so doing, HHS must continue to respect and provide for differing views as to the proper definition of these terms – just as Congress has provided conscience protections for those who decline to perform or participate in abortions as well as for those who support and perform abortions.
In closing, we adamantly affirm the need for the Rule as a necessary enforcement mechanism for existing federal laws protecting healthcare freedom of conscience and as an appropriate means for effectuating long-standing Congressional intent to protect conscience. As such, the Rule should be retained.
Denise M. Burke
Vice President of Legal Affairs
 74 Fed. Reg. 10207 (March 10, 2009).
 For more information on healthcare freedom of conscience, see Defending Life 2009: A State by State Legal Guide, http://dl.aul.org/rights-of-conscience/primer-on-protecting-healthcare-rights-of-conscience (last visited April 7, 2009 and published by AUL).
 Katherine A. White, Crisis of Conscience: Reconciling Religious Health Care Providers’ Beliefs and Patients’ Rights, 51 Stan. L. Rev. 1703, 1703 (1999).
 42 U.S.C. § 300a-7(b).
 The amendment was enacted as part of the Health Programs Extension Act of 1973, Pub. L. No. 93-45.
 Jacob M. Appel, Judicial diagnosis ‘conscience’ vs. care how refusal clauses are reshaping the rights revolution, Med Health RI 88(8): 279-81 (August 2005).
 42 U.S.C. § 300a-7(c).
 Rachel Benson Gold, Conscience Makes a Comeback In the Age of Managed Care, The Guttmacher Report on Public Policy (Feb. 1998). Forty-seven states maintain laws protecting healthcare freedom of conscience. Only Alabama, New Hampshire, and Vermont have no such laws.
 20 U.S.C. § 1688.
 42 U.S.C. § 238n(a)(1).
 Pub. L. No. 105-33. The Medicare conscience provision is codified as amended at 42 U.S.C. § 1395w-22(j)(3)(B), and the identical Medicaid conscience provision is codified as amended at 42U.S.C. § 1396u-2(b)(3)(B).
 The Departments of the Army, Air Force, and Navy (which includes the U.S. Marine Corps).
 HRSA report, What is Behind HRSA’s Projected Supply, Demand, and Shortage of Registered Nurses? Additionally, according to the latest projections from the U.S. Bureau of Labor Statistics published in the November 2007 Monthly Labor Review, more than one million new and replacement nurses will be needed by 2016. Government analysts project that more than 587,000 new nursing positions will be created through 2016 (a 23.5% increase), making nursing the nation’s top profession in terms of projected job growth. Available at: www.bls.gov/opub/mlr/2007/11/art5full.pdf (last visited April 7, 2009).
 Forty-seven states provide some protections for healthcare freedom of conscience. Only Alabama, New Hampshire, and Vermont are without protective laws.
 See e.g., President Obama Moves to Rescind Bush HHS Rule, http://reproductiverights.org/en/press-room/president-obama-moves-to-rescind-bush-hhs-rule (“Today, the Obama [A]dministration indicated that it plans to rescind a health regulation that would drastically hinder women’s ability to get … basic care such as contraception”) (last visited April 7, 2009) ; and Planned Parenthood Joins 56 Other Organizations in Opposing Draft HHS Rule, http://www.plannedparenthood.org/newsroom/press-releases/draft-hhs-rule-21565.htm (“This is a … regulatory change that deliberately confuses contraception with abortion”) . (last visited April 7, 2009)