Law Professor Alvaré makes the case for conscience rights, Protect Life Act

Prof. Alvaré

Law professor Helen Alvaré provides a well-reasoned rationale for the Protect Life Act, H.R. 358, in her column, "Bills Needed to Repel Obama’s Attack on Pro-Life Conscience."
Prof. Alvaré observes,

There is no need to view the matter of conscience protection in health care as a zero-sum game between conscience-driven healthcare providers and the patients they serve, particularly the most vulnerable. Opponents of conscience protection often portray the situation this way, but the opposite is true.

She offers four key points:

1. Less privileged women are less likely to support abortion or abortion funding than are more privileged women, or than men.
2. Abortion has not mainstreamed into the American healthcare system. It remains rather, in the words of the New York Times, at the “margins of medical practice.”
3. There is an emerging scientific and cultural willingness to conclude that abortion is a form of killing, and not health care for women.
4. There is evidence from a growing body of sociological as well as law and economics literature that more easily available abortion is associated with women’s “immiseration,” and not their flourishing.

Prof. Alvaré concludes,

The Protect Life Act is a both a necessary and a wise amendment to the Affordable Care Act. It helps preserve within our nation’s health care delivery system the valuable contributions made by conscience-driven providers and institutions to the needs of the most vulnerable women and men. It indicates that abortion has not attained the status of a “standard” of health care, a message which might well help begin to reverse the negative role played by legalized abortion in the lives of American women, particularly the most vulnerable women. And it preserves in American law and culture the bedrock value of respect for religious and moral conscience.

Prof. Alvaré also testified before Congress on the Protect Life Act.
Action:
Click here to locate your Representative's web page, then use the Contact form on that page to send an email or place a phone call.
Sample email or phone message to your Representative:
Please vote YES on the Protect Life Act, H.R. 358 to prevent federal funding for abortion and to provide conscience protections for healthcare professionals and institutions.

No evidence, no matter: Hardly "restoring science to its rightful place" on conscience in health care

From an article I wrote for the National Right to Life News:

On February 18 the Obama administration gutted the only federal regulation protecting conscientious healthcare professionals from discrimination.

While three long-standing federal conscience-protecting laws remain intact, the conscience-protecting regulation had been promulgated under the Bush administration to remedy documented pervasive discrimination against pro-life physicians and others in disregard of the anti-discrimination laws.
U.S. Dept. of Health and Human Services (HHS) Secretary Kathleen Sebelius effectively eviscerated a sensible Bush-era regulation that had finally put teeth to bipartisan federal civil rights laws enacted over the past three decades. Those anti-discrimination laws were passed, all after the Supreme Court’s 1973 Roe v. Wade abortion ruling, as a way to keep physicians, nurses, hospitals and others from being forced out of medicine simply for following life-affirming ethical standards such as the Hippocratic oath.
But abortion advocates hyperventilated when it appeared that those laws would actually be implemented and enforced by the conscience protection regulation, which took effect in January 2009.
Cecile Richards of the Planned Parenthood Federation of America had said, “It is going to cause chaos among providers across the country.”
Then-Sen. Hillary Rodham Clinton had said: “It threatens the health and well-being of women and the rights of patients across the country.”
Of course, none of their doomsday predictions even faintly materialized in the over two years since the original regulation took effect. In explaining Friday’s regulation change, HHS presented no evidence whatsoever of any hindrance to any patient, procedure or prescription.
The complete lack of evidence didn’t seem to matter a whit, despite President Obama’s vow in his Inaugural Address to “restore science to its rightful place.”
The administration’s radical action again suggests tone deafness to the American public. Of the over 300,000 comments HHS received regarding rescission, twice as many opposed rescission as supported it. The Polling Company in 2009 conducted a nationwide scientific polling of the public and also of faith-based healthcare professionals. The results revealed that... (read full article)

Post article on conscience reg gutting regurgitates unfounded assertions as fact

A recent Washington Post news article I was interviewed for regarding the administration's gutting of the conscience regulation reads more like the talking points for radical abortion groups ("Obama administration replaces controversial 'conscience' regulation for health-care workers," February 19). From the article:

After two years of struggling to balance the rights of patients against the beliefs of health-care workers, the Obama administration on Friday finally rescinded most of a federal regulation designed to protect those who refuse to provide care they find objectionable on moral or religious grounds.
The decision guts one of President George W. Bush's most controversial legacies: a rule that was widely interpreted as shielding workers who refuse to participate in a range of medical services, such as providing birth control pills, caring for gay men with AIDS and performing in-vitro fertilization for lesbians or single women.
Friday's move was seen as an important step in countering that trend, which in recent years had led pharmacists to refuse to fill prescriptions for the emergency contraceptive Plan B, doctors in California to reject a lesbian's request for infertility treatment, and an ambulance driver in Chicago to turn away a woman who needed transportation for an abortion.
"Without the rescission of this regulation, we would see tremendous discrimination against patients based on their behavior and based just on who they are," said Susan Berke Fogel of the National Health Law Program, an advocacy group based in the District. "We would see real people suffer, and more women could die."
The new rule leaves intact only long-standing "conscience" protections for doctors and nurses who do not want to perform abortions or sterilizations. It also retains the process for allowing health workers whose rights are violated to file complaints.
Friday's decision was condemned by proponents of stronger protections, who say doctors, nurses, pharmacists and other workers regularly face discrimination, firing and other punitive measures because of their deeply held convictions.
"Any weakening of conscience protections opens the door that much further to discrimination against life-affirming health-care professionals and institutions," said Jonathan Imbody, Vice President for Government Relations at the Christian Medical Association. "With many areas already facing critical shortages of professionals and institutions, this is no time to be risking the further loss of health-care access for poor patients." The new rule, which goes into effect in 30 days, is likely to fuel the intensifying debate over abortion and related issues. House Republicans have introduced several pieces of legislation containing provisions that would replicate many of the effects of the Bush rule. Read full article.

This article, like the administration's new regulation, asserts a raft of undocumented allegations as facts. The well-considered conscience protection regulation had been in effect for over two years. Yet opponents could come up with no evidence whatsoever to back up their wild assertions that it "threatens the health and well-being of women and the rights of patients across the country" (Hillary Clinton) or "is going to cause chaos among providers across the country" (Cecile Richards, Planned Parenthood Federation of America).
Where is the evidence for healthcare professionals refusing "caring for gay men with AIDS"? Faith-based healthcare professionals are among the leaders in caring for AIDS patients. Where is the evidence for any "discrimination against patients ... based just on who they are"?
This administration promised to "restore science to its rightful place," but now it's writing far-reaching regulations based on no evidence. The administration presents no evidence of any hindrance of patient access to health care, prescriptions or procedures. In the absence of evidence, this rule appears to have been written solely to accommodate the ideology and rhetoric of abortion advocates.
The only recourse we have until the next election is to pass laws protecting conscience and prohibiting discrimination in health care. I trust you will take action today
Action: Read the Freedom2Care blog, "Pro-life bills introduced in Congress - a quick summary" and contact your Representative to urge his or her support of the conscience-protecting bills.

Obama guts conscience protection regulation - analysis

The New Conscience Regulation: Gutting Protections, Laying Landmines

On February 18 the Obama administration gutted the only federal regulation protecting conscientious healthcare professionals from discrimination.
Following are direct quotes excerpted from the new conscience regulation, which included discussion sections of explanations and interpretations by Obama administration HHS officials. The regulation can be viewed in its entirety here. My comments in italics follow the quoted excerpts from the regulation.
Gutting the regulation
"Sections 88.2 through 88.5 of the 2008 Final Rule have been removed. Section 88.2 contains definitions of terms used in the federal health care provider conscience statutes. The preamble to the August 26, 2008 Notice of Proposed Rulemaking (73 FR 50274) and the preamble to the December 19, 2008 Final Rule (73 FR 78072) addressing these sections are neither the position of the Department, nor guidance that should be relied upon for purposes of interpreting the federal health care provider conscience protection statutes."
These few sentences in the new regulation cut the heart out of the original conscience regulation. The definitions in the original regulation were the key to making sure the law was interpreted correctly, providing concrete examples of conscience protections backed by law. Examples included definitions of what constitutes "discrimination"; what it means to "assist in the performance of abortion"; what is a “health care entity” and who within a healthcare institution “workforce” enjoys protection under the law.
"Abortion" does not include contraception
"The 2008 Final Rule did not provide that the term “abortion,” as contained in the federal health care provider conscience protection statutes, includes contraception. However, the comments reflect that the 2008 Final Rule caused significant confusion as to whether abortion also includes contraception. The provision of contraceptive services has never been defined as abortion in federal statute. There is no indication that the federal health care provider conscience statutes intended that the term “abortion” included contraception. "
This is one of the most alarming sections of the new regulation. It seems entirely possible that this language is laying a foundation for disallowing conscientious objections to prescribing or providing contraception and abortifacients. Abortion advocates have been tirelessly pushing legislation to mandate such provision and prescriptions, and this language appears to be tailored to that drive to remove ethical choices from healthcare professionals.
Read the complete analysis here

CMA physicians, former HHS Asst. Secretary decry Obama administration's regulatory action on conscience and discrimination

The 16,000-member Christian Medical Association (CMA, www.cmda.org) today protested the decision of the Obama administration to weaken the only federal regulation protecting the exercise of conscience in health care.

Dr. J. Scott Ries, a board-certified family physician and CMA's vice president for Campus & Community Ministries, said, "The administration has made changes in a vital civil rights regulation without evidence or justification. The administration presented no evidence of any problems in healthcare access, prescriptions or procedures that have occurred in the two years since the original regulation's enactment that would justify any change in this protective regulation.
"The administration, for example, contends that a rule change is necessary to protect access to contraception, but absolutely no evidence is presented to justify any such concern. In the process, the administration blatantly ignores the scientific evidence that certain controversial prescriptions that abortion advocates promote as contraception are actually potential abortifacients, ending the life of a living, developing human embryo. This is a critical concern for pro-life patients, healthcare professionals and institutions."
The U.S. Department of Health and Human Services indicated in 2008 in its final rule, "We have found no evidence that these regulations will create new barriers in accessing contraception unless those contraceptives are currently delivered over the religious or moral objections of the provider in such programs or research activities."
Dr. Ries added, "The Obama administration's regulatory action today diminishes the civil rights that protect conscientious physicians and other healthcare professionals against discrimination. Any weakening of protections against discrimination against life-affirming healthcare professionals ultimately threatens to severely worsen patient access to health care.
"Losing conscientious healthcare professionals and faith-based institutions to discrimination and job loss especially imperils the poor and patients in medically underserved areas. We are already facing critical shortages of primary care physicians, and the Obama administration's decision now threatens to make the situation far worse for patients across the country who depend on faith-based health care."
National survey results show that over nine of ten faith-based physicians, who are among the most likely to be serving the poor and those in medically underserved areas, indicate they would rather leave the profession if denied the ability to practice medicine according to conscientiously held ethical standards. Survey results also indicate that 20% of faith-based medical students say they are "not pursuing a career in Obstetrics or Gynecology" because of perceived discrimination and coercion in that field.
Dr. Ries added, "Stories told to me by medical students across the country indicate that the threat of being forced to participate in abortion procedures and violate their moral integrity is enough to steer them in the opposite direction. That means even fewer physicians for women in the future in this specialty that is already facing critical shortages.
Former U.S. Assistant Secretary of Health Dr. Joxel Garcia noted, "Especially in physician shortage states such as Texas, Georgia, Alabama, Mississippi, Oklahoma, Utah, Nevada, Idaho and Delaware, losing just one physician can erase healthcare access for thousands of patients.
"Pushing conscientious physicians out of medicine is a signifiant step toward a healthcare system controlled by the state that moves away from the ethical roots of medicine. In the new governmental utilitarian model, the 'common good' defined by the state supersedes any moral, religious or ethical principle such as embodied in the Hippocratic oath, which has protected patients for millennia."
As the second-in-command under Sec. Mike Leavitt at the U.S. Dept. of Health and Human Services (HHS), Dr. Garcia oversaw the development and implementation of the conscience regulation and continues to work closely with the CMA and others to protect conscience rights. He currently serves as President and Dean at the Ponce School of Medicine & Health Sciences, where CMA provides a medical student ministry, as it does on over 90 percent of the nation's medical and dental school campuses.
Dr. Ries' clinical career has included faculty appointments at Indiana University School of Medicine and Butler University; he has also served as medical consultant to NBC, CBS, FOX and ABC network affiliates.