HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Thursday, December 18, 2008

Conscience Rule Regulations

The Washington Monthly discusses and critiques the new conscience rule regulations that will go into effect next month.  Hilzoy reports,

The rule (pdf) covers not just employees who refuse to perform a medical procedure they find objectionable, but to those who refuse to refer people to others who do provide such services. It would, for instance, protect people who not only refuse to perform abortions themselves, but who refuse to tell their patients who else might provide one, where to get the morning-after pill, etc. (See p. 106.) And as the Post notes, it would prevent organizations whose mission is to provide a small set of services from "discriminating against" people who refuse to perform those very services. (E.g., Planned Parenthood can not "discriminate against" people who object to providing contraception, even though providing contraception is 38% of their services delivered.) . . . .

Seriously: I am all for employers trying to accommodate their employees' religious convictions, when they can do so without compromising (in the case of medical employers) either the care they provide or the interests of their patients. Thus, if one of thirty Ob/Gyns in a large hospital believed that it would be wrong for her to perform abortions, I think it would be great for that hospital to arrange for other doctors to perform any abortions that were required, while asking her to take up the slack in some other way.

But the qualification "when they can do so without compromising either the care they provide or the interests of their patients" is crucial. And there are very clear limits to this, limits that this rule does not respect. My imaginary Christian Scientist doctor was meant to point that out. But the idea that it should be illegal for Planned Parenthood clinics to take someone's willingness to offer contraceptive services into account in hiring decisions is almost as absurd as saying that they should not be able to take into account that person's being a Christian Scientist.

Moreover, being unwilling to refer patients to (for example) providers of abortion or contraception always compromises the interests of patients. Doctors are supposed to explain patients' alternatives to them, and to provide the relevant referrals. They are not supposed to mention only that subset of those alternatives that they approve of on non-medical grounds -- grounds their patient might or might not agree with. The decision whether or not to have an abortion, to go on the pill, etc., is the patient's, not the doctor's. Keeping patients in the dark about those alternatives, or refusing to tell them how to obtain them, is paternalistic, and it's wrong. If a doctor doesn't want to provide such referrals, she should have gone into ophthalmology.

It's an odious rule. Luckily, as Steve noted yesterday, it probably won't last very long.

More critique can be found here.


 

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