The Proposed HHS Rule for Health Care Providers: When "Conscience" is Code for Intolerance

by Alison Mehlman
CHLP Director of Planning & Policy Research

The introductory language accompanying the proposed rule explicitly states that the regulation "does not limit patient access to health care." But how can it not?

by Alison Mehlman
CHLP Director of Planning & Policy Research

On August 26, 2008, the U.S. Department of Health and Human Services (HHS) published a proposed rule purportedly to clarify U.S. policy on prohibiting discrimination by HHS-funded entities against health care providers in their employ who refuse to engage in work-related activities that they find morally objectionable. In the HHS press release that accompanied the rule publication, HHS Secretary Mike Leavitt is quoted as saying that, “[d]octors and other health care providers should not be forced to choose between good professional standing and violating their conscience.”

 
This “conscience” rule is drafted so broadly that it would effectively allow anyone even remotely associated with any medical service to refuse to participate if the service somehow violates their moral convictions. What this means is that doctors, nurses, medical technicians, instrument cleaners, and even entire hospitals and insurance plans will have the right to refuse services (including information and referrals) to, for example, women seeking abortions or birth control; gay men, drug users, or others seeking treatment for HIV infection; lesbians or HIV-positive women seeking artificial insemination; or any other person whose being offends the sensibilities of the provider.
 
The introductory language accompanying the proposed rule explicitly states that the regulation “does not limit patient access to health care.” But how can it not? Any time a provider is given the option of refusing treatment to a given person or group of people, access to health care will inevitably be limited. Moreover, such refusals on the part of providers will ultimately lead to patient mistrust of the health care system, resulting in some people forgoing care altogether.
 
The practice of health care providers is, of course, already governed by the licensing requirements and ethical guidelines of each particular specialty; the government's imposition of such sweeping exceptions only undermines these requirements. Just as a public defender may not refuse counsel to defendants based on who they are or what they might have done, a health care provider should not be permitted to deny services to anyone based on the provider’s own prejudice toward the patient. As the debate over HIV testing continues with providers decrying the burdens of obtaining informed consent from patients, we must remember that the purpose of health care is to do what is best for patients, not what is most convenient or comfortable for providers.
 
To view the proposed rule, click here.
 
HHS is accepting comments on the proposed rule until September 25, 2008. Instructions for submitting comments are provided in the Federal Register (see link above).