Testimony Summary for Dan McConchie
Before the Judiciary Committee
On House Bill 1653
January 24, 2012
I am Dan McConchie, Vice President of Government Affairs at Americans United for Life Action, a national public interest law firm with a practice in abortion and bioethics law. Our legal staff has extensive experience in constitutional law, including the constitutionality of laws protecting the freedom of conscience of healthcare professionals. I am submitting for the record today testimony of Anna Franzonello, Staff Counsel at Americans United for Life, whose expertise includes issues related to freedom of conscience. Her written testimony details the constitutionality of House Bill 1653 and the necessity of protecting the freedom of conscience for healthcare professionals.
In the wake of the Supreme Court’s 1973 decision in Roe v. Wade, both federal and state laws were enacted to protect individual (and, in some states, institutional) conscience. Today, New Hampshire is one of only three states – Alabama, New Hampshire, and Vermont – that fail to provide statutory protection for healthcare professionals’ freedom of conscience. In contrast, forty-seven states provide some degree of conscience protection for healthcare professionals.
Over the last nearly four decades the list of ethical dilemmas in medicine has continued to grow: embryonic stem-cell research, assisted reproductive technologies, abortion-inducing drugs, end-of-life directives, assisted suicide, euthanasia, and others.
At the same time, attacks against the freedom of conscience of healthcare professionals are growing.
The Constitution of New Hampshire is clear that the freedom of conscience is a paramount, unalienable right. Article 4 states, “Among the natural rights, some are, in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the Rights of the Conscience.”
House Bill 1653 safeguards this centuries old principle of the New Hampshire Constitution. Precisely because “no equivalent can be given or received,” it is vital that New Hampshire enact a statutory measure to guard against coercion and discrimination.
The Founders of the United States also believed protecting the freedom of conscience was of the utmost importance. 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 civil authority.”
Statutorily protecting freedom of conscience is necessary to safeguard these principles which the constitutions of the United States and the state of New Hampshire enshrine. Moreover, protecting the freedom is critical to slowing, not exacerbating, shortages of healthcare professionals and ensuring access to quality health care in New Hampshire.
Further, it is important the concept of conscience not be narrowly defined as a religious. Non-religiously affiliated persons and institutions have consciences that can likewise be violated by mandates and coercive participation in healthcare services.
Accordingly, House Bill 1653 does not narrow the principle of conscience but rather recognizes it is a pluralistic right, one embraced by Christians and non-Christians alike. House Bill 1653 is not based on respecting one faith but on respecting the integrity of all individuals.
While there are federal laws protect conscience, they are attached to specific federal spending measures; House Bill 1653 is necessary to provide comprehensive protection for the freedom of conscience for healthcare professionals in New Hampshire.
There is an important public health interest in ensuring the protection of conscience rights; forcing healthcare professionals to choose between their consciences and their careers will only heighten the current healthcare provider shortage. In a survey conducted in 2008, 91 percent of faith-based physicians agreed with the statement, “I would rather stop practicing medicine altogether than be forced to violate my conscience.”
Thus, 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.
In contrast, failing to respect freedom of conscience, and with growing threats against it, we will lose doctors, nurses, and other healthcare professionals who are already in short supply, especially in rural parts of the country, and will bar competent young men and women from entering these vital professions.
Threats against the freedom of conscience are not hypothetical. Recent examples of discrimination and coercion of healthcare professionals include:
- A nurse at Mt. Sinai hospital in New York, Cathy DeCarlo was forced to participate in a late-term abortion despite her conscientious objection.
- Nine nurses at Nassau University Medical Center in Long Island, New York, were suspended for refusing to participate in an abortion. Only after the nurses’ union intervened did the hospital drop its disciplinary charges and apologize to the nurses.
- Vanderbilt University required applicants to its nursing program to take an abortion pledge. After a complaint was filed with the U.S. Department of Health and Human Services for a violation of federal law, Vanderbilt changed its abortion pledge policy.
- A hospital run by the University of Medicine and Dentistry of New Jersey changed its policy to require nurses—regardless of known conscientious objection—to participate in abortions. The hospital only recanted after 12 nurses sued and obtained a temporary injunction.
Sadly, this represents only a small sampling of the mounting attacks on the freedom of healthcare professionals to provide medical care without violating their religious, moral, or ethical beliefs.
Moreover, experience shows that without statutory protections that contain adequate enforcement mechanisms, the freedom of conscience may be reduced to a platitude.
The case of Nurse DeCarlo is instructive. While the First Amendment and federal conscience protections laws purport to prohibit such discrimination, a federal court dismissed her claim, saying that without a clear statutory remedy Nurse DeCarlo cannot bring suit on her own behalf for a violation of federal law. Instead, ruled the court, the Department of Health and Human Services could (if it chooses) pursue DeCarlo’s case under regulations enacted by the George W. Bush Administration.
Nurse DeCarlo’s story is just one example of how, lacking a clear concrete statutory remedy, the basic civil rights of healthcare professionals are vulnerable without promise of redress, since they rely on others to enforce.
Protecting freedom of conscience does not ban any procedure or prescription and does not mandate any particular belief or morality. Freedom of conscience, statutorily enforced by House Bill 1653, simply provides men and women of New Hampshire the guarantees that this state and country were 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 health care. Failing to do so will compromise basic health care for the state of New Hampshire.