Freedom of Conscience in Health Care

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The Obama Administration has signaled that it will rescind the Bush Administration's executive order providing for freedom-of-conscience protection for health care workers who seek to refrain from activity they consider immoral. The motivation for this, according to the article, is that existing laws already provide some of the intended protection, and what the newer executive order does add might be unwelcome. The only examples given of what's unwelcome is that it would allow health care workers from refusing to take part in certain activities that might prevent abortion, such as providing information about contraceptives.

The question seems to be whether it's worse to do (1) something that has a negative consequence in making it more difficult in certain circumstances to find health care workers who won't abstain or (2) requiring people to do something they consider immoral. This should be a no-brainer for anyone who isn't a consequentialist. It's much worse to allow the unwelcome consequence than to perpetuate immorality yourself, and it's pretty downright evil to force people to do something they consider evil just because you would prefer a certain result that they might also prefer.

So this explanation won't fly. I'm curious to hear if they have anything else to offer, since I know President Obama has a track record of offering a multitude of contradictory explanations of his controversial acts, so I know he's creative with this kind of thing, but I'm having trouble seeing a motivation for this that a reasonable person could actually have.

11 Comments

Why don't you address the original article:

"Under the rule, workers in health-care settings -- from doctors to janitors -- can refuse to provide services, information or advice to patients on subjects such as contraception, family planning, blood transfusions and even vaccine counseling if they are morally against it."

No one here is talking about forcing people to do things against their beliefs. The question is when do other people have to accomodate your beliefs and when do you have to take responsibility for them.

Your moral beliefs do impose some cost on you and that's perfectly proper. If you, for example, believe it is absolutely immoral to kill animals for food or to even facilitate that indirectly it is probably going to be impossible for you to find employment in a supermarket unless it's one that specializes in vegatarian food.

Consider a bartender who converts to the Mormon religion and as a result decides he cannot serve alcohol or caffeine based drinks. Does his employer have to keep him on the payroll for the few customers who order milk or water or can they say, "Look we respect your beliefs but we need a bartender who tends bar, if you can't do that then you have to find other employment.".

A few times we do require others to accomodate one's beliefs. By law we have decided that employers are required to make reasonable accomodation to their employees beliefs and that is fine IMO. I have no issue with saying, say, a paper company can't fire a vegetarian simply because he turns down the steak dinner at the company Christmas Party.

But clearly the problem with the Bush order is that it creates an anything goes rule. Is it wrong, for example, for a hospital to tell their janitors they must clean every room and they will not create a wing dedicated to 'no blood tranfusions' to accomodate their belief? I don't think so. I think the exceptions should be debated and enacted into law per the democratic process.

To give due props, I started a discussion thread over here that springs off of this post and the CNN article.

If the rule allows people to opt out of something they consider immoral, doesn't that assume that without the rule there will be cases where they can't do so? Doesn't that then mean that there must be some law forcing people to do something they consider immoral? I don't see why there would be any debate at all if it weren't for something like that.

As for your justification for removing the rule, I am quite confident that President Obama isn't using that kind of reasoning, at least not if he's going to end up with a consistent view in the end. I doubt he would take the same line of thought about executive policies in the areas of anti-discrimination and environmental regulation, and those raise pretty much the same issues, don't they?

Jeremy,

From what I understand the rule is less about preventing people from being 'forced' but about forcing employers. Per Bush's rule, a janitor at a hospital could tell his boss that his religion abhors blood transfusions and he will not clean any room in which such a thing might be done. Per the rule, the hospital may not fire him but must find some way to work around his belief.

But there's a big difference between 'being fired' and 'being forced'. The hospital isn't forcing the janitor to help (indirectly) with blood transfusions. The janitor is perfectly free to walk away from the job and work elsewhere.

There are times where I would say that the employer should be required to work around their employees beliefs. Those would be areas where the beliefs have no significant impact on the job (i.e. won't eat meat at the Christmas Party) or cases where we as a society decide to write laws carving out areas where the employer must yield to the employee's beliefs (such as a general hospital that does all types of procedures versus a doctor who is willing to do anything but abortion).

The problem IMO is adopting a blanket principle that 'your boss can't ask you to do ANYTHING you decide is immoral' is that:

1. You're opening the door to all sorts of folly.

2. You're ignoring another principle that people generally should bear the costs of abiding by their beliefs. Holding beliefs do impose personal costs on you. If you are agaisnt prostitution, for example, you can't very well take a job in a brothel (say you live in a Nevada where brothels are legal). Such a stand is a lot less impressive if you have a law saying the brothel must hire you but you can refuse to do anything that aids your employer in his business.

It seems as if the argument against the wording isn't grounds for removing the protection but for narrowing it so it's not so blanket an effect. I understand the argument for having Congress do it, but that's not Obama's argument, is it? From his perspective, this is something the executive is perfectly all right in doing, provided that it's a good policy. His objection seems to be to the policy, not the means. So his willingness to overturn it entirely rather than narrow it suggests that his real reason is not what he says it is, unless he's also saying that he's going to investigate it with the plan to implement a better version of it, the way Bush did with some of the environmental regulations Clinton slipped through at the last minute, some of which Bush eventually reinstated after getting a chance to examine the science behind them (not that their reinstatement was ever acknowledged by his critics). I didn't see any serious indication that this would be revised rather than simply removed. That's what bothers me about how it's being framed.

Well here is what the article says about the rule:

"The Provider Refusal Rule was proposed by the Bush White House in August and enacted on January 20, the day President Barack Obama took office."


WARNING: Bush's rule was put into place at the last moment. This is a red flag for bad policy. At the very least we know that somehow even the Bush administration was able to live 8 years without this rule and I cannot recall any horror stories about doctors being forced at a point of a gun to perform abortions agaisnt their will!

"It expanded on a 30-year-old law establishing a "conscience clause" for "health-care professionals who don't want to perform abortions.""

CONTEXT CLARITY: Sounds like Congress did decide on reasonable exemptions for employee beliefs on abortion. Now it becomes clear what this is about. Bush put into place a silly reading of the law at the last moment so Obama would have to reverse it thereby causing blogs like this one to imply that Obama's making some type of radical pro-abortion policy change when in fact he is simply returning the law to exactly where it was the day before Bush's very last day!

Right, I'm not arguing that Obama should have left it exactly as it was. It was as unfair for Bush to pull this out at the last minute as it was for Clinton to push through all those unresearched environmental regulations just to make Bush look bad for wanting to research them further (and most of them withstood examination and were reinstated). It's just bad form to suspend it without explaining that adequately and without giving any sign that there is a good motivation for that law, with reassurances that the protection intended by it will be restored if it's found that existing laws don't provide it. Obama's emphasis was entirely in the other direction, and I find that disturbing.

As for conscience clause laws, I remember hearing about several cases over the last few years where people were required to sell the morning-after pill despite thinking it immoral to do so. But there is one further issue with abortion that I don't think discussions of this executive order are considering. Obama said the first thing he'd do as President was to sign the Freedom of Choice Act, which a lot of people are saying would remove any such protections (and I've seen no claim from the other side that it wouldn't).

"As for conscience clause laws, I remember hearing about several cases over the last few years where people were required to sell the morning-after pill despite thinking it immoral to do so."

I think there is a good debate to have as this applies to pharmacies as well as others. I recall reading about cases where women go to a pharmacy with script for birth control pills and are told by the pharmacist that they will not fill such prescriptions. Then they are told that they cannot have their prescription back so they can take it elsewhere because that too would be aiding them to do something that they think is immoral!

There are certain responsibilities one takes as a heathcare professional. One of them is to truth. If a patient asks if there's a way to prevent pregnancy, for example, the doctor cannot respond "no no such medicine or device exists". He must acknowledge that birth control exists and that it does prevent pregnancy even if he informs the patient that he will not prescribe it.

I think as you get more and more removed from the patient the responsibility for the act that may be immoral drops off dramatically. I could see a pharmacist saying she will not fill a script for an abortion pill...maybe. But I wouldn't accept the truck driver that delievers to the pharmacy telling his boss that he must hire a second truck to deliever the pills, condoms and all the other material he objects too.

A factor to consider here is that doctors are a bit like lawyers. They are a professional class that is protected from competition in exchange for a committment they make to society. A lawyer, for example, will represent the guilty but promises to act as an 'officer of the court' and not aid his client in breaking the law. Doctors likewise have special responsibilities such as to keep patient information confidential. If the minster's wife tells her doctor she is having an affair, the doctor cannot blab even if he feels that her activity is immoral.

I think a pharmacist is closer than the truck driver but still pretty far removed from a doctor or even a nurse. So I think conscience exemptions should be a lot more limited for them. Just consider, for example that the pharmacist doesn't even know why a doctor is prescribing a drug. Birth control pills are used to regulate a woman's cycle, for example. Even the abortion pill might have conceivable off-label uses unrelated to abortion.

So I guess returning the other person's property is like handing them their weapons back when their mad in Socrates' example in book I of Plato's Republic? There's a clear law there, though. That's stealing. That seems like a clear case where they should see it as civil disobedience and pay the penalty, since the law requires them not to steal the person's prescription.

I'm not sure I disagree with you significantly as a matter of what the policy should be. It's the manner of Obama's doing this and how he described it that seems fishy to me, and that's true even if the Bush Administration set him up underhandedly the same way the Clinton Administration had set him up underhandedly with environmental regulations.

I think we can agree that this won't be the end of the issue. Pharmaceuticals have become a bigger part of healthcare than they were 30 years ago and pharmacists have become more like doctors than they were back then as well in that they do a bit more than just count pills off into bottles (although a lot of pharmacists, esp. in mail order are doing just that). It probably does make sense to revisit the law. Hopefully both sides will be willing to seriously listen to reasonable compromises that both can agree on. Sadly, much of the debate, I feel, quickly degenerates into trying to game the system. The Bush policy, for example, seems designed to allow so many spurious challenges that birth control or abortion could be de facto outlawed (i.e. the janitor that insists he doesn't have to sweep the aisles that sell condoms)....although maybe it's just poorly thought out. I'd hope on the other side that reasonable provisions are made so direct healthcare providers do not have to choose between their job and principles when they work for a general practice (of course if you apply for a job as a nurse at an abortion clinic I don't think you should be able to claim your boss can't expect you to participate in abortions).

I'll just say that I'll be pleasantly surprised if Obama does ever revisit this issue, and I very much doubt that the Bush Administration, which never opposed contraception (despite regularly being misrepresented as doing so), would want to make contraception effectively impossible to buy. To do so by having uncleaned aisles in pharmacies would also be a very strange method. How could spurious challenges lead to abortion and contraceptives being outlawed in effect? Wouldn't a challenge to the law make it less likely that the law could be enforces in the meatime? It's much more likely to be an oversight, as most laws that are too sweeping are.

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