Bush throws down gauntlet for Obama on “right to die” and abortion with “conscience rule”

One thing can be said… all of us – on both sides of the aisles – live in the dark on most actions our govt is doing on our “behalf”. So those with particular specialties, and an eye on relative legislation, are often very helpful in drawing attention to issues that arise we would otherwise miss.

Such is the case when Larry Weisenthal, one of our left leaning FA commenters, requested an authored post on a new regulation to be implemented prior to Obama’s inauguration, the “conscience rule”.

First off, what is the Conscience Rule? I didn’t know either. So I started with Larry’s link to the USA article today – Medical ‘Conscience Rule’ may be ethical hot potato”.

Step aside, inaugural prayer furor, a new controversy is burning — the Bush administration’s newly approved “conscience rule” for health care workers.

Under the rule, which takes effect mid-January, anyone from the brain surgeon to the pharmacy cashier can opt out of participating in care to which they have a moral or religious objection. Health and Human Services Secretary Michael Leavitt described it as a rule to protect “the right of medical providers to care for their patients in accord with their conscience.”

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Currently religion-based health care service providers, such as the vast Catholic health care network, have complained that some federal and state laws require their employees to provide care in opposition to the teachings of their faith. The new rule would override state laws that require hospitals to tell rape victims about access to emergency contraception, for example.

Sounds ominous, yes? How has this escaped us? And did it come out of nowhere as a gauntlet thown down as a sunset measure… thus becoming a test for a new President Obama to make a definitive statement on abortion?

Most importantly, is this a moral/religious/Hippocratic Oath assault on abortion and “death with dignity”? Or is it more subtlely founded in lawsuits?

Since not as many are advocating the “Die with Dignity” law that my home state, Oregon, has on it’s books, what is emerging from the woodwork vocally in response to the new regulation – slated to take effect mid January – is the abortion advocates. And they are using the religion argument hot and heavy to drive their point home. Fair? Not entirely… read on.

Before you snap to a quick judgment, let me tell you that this is not a clear cut issue for either side. Most of us will find ourselves split on the issue by the time you are thru reading links, and assessing the reality.

Nor is this a new issue in Congress. While this appears to be a hidden surprise for the public, in reality this is a battle that rages back to at least 1997 in our Congress.

From the above linked 1997 Reuters article:

Health plans contracting with Medicare would not have to provide end-of-life or abortion services if they objected on moral grounds, a House committee decided Thursday.

The plans also would not be required to provide palliative care, which lessens pain without curing. The House Commerce Committee approved the “conscience clause” as it debated legislation creating a new program to cover up to 5 million uninsured children and cut Medicare and Medicaid spending.

The measure is one of the most significant domestic initiatives to move through Congress this year. It calls for $15 billion in savings in the Medicaid health program for the poor, elderly and disabled while providing $16 billion in grants to states to cover uninsured children.

The bill is needed to implement a five-year balanced budget deal between Congress and the White House. It was expected to be approved later Thursday.

The committee by 33-12 vote approved an amendment making it clear that health plans contracting with Medicare would not have to provide, pay for or cover counseling or referral for services such as end-of-life, abortion or family planning to which they object on moral grounds.

According to that article, the biggest debate between the opposing parties was not the morality of abortion or assisted death, but amendments to eliminate or trim a pilot project allowing 500,000 seniors to set up tax-free medical savings accounts rather than participating in the traditional Medicare program.

Not knowing that particular bill, nor tracking it’s progress, it’s safe to assume that it ran into a brick wall somewhere, and was not implemented in that form.

The debate in the medical industry did not lapse with the legislation’s failure. According to anti-“conscience rule”,Tresa Baldas, in her article: FIGHTING REFUSAL TO TREAT ‘CONSCIENCE’ CLAUSES HIT THE COURTS in the The National Law Journal in Feb 2005, the battle raged on in, at least, the state level.

A wave of proposed legislation and numerous lawsuits are highlighting a trend by state governments to protect anti-abortion medical providers who refuse to offer services or drugs on religious or moral grounds.

Last year, 14 states introduced 37 bills that would allow pharmacists and other health care providers not only to opt out of abortion services, but to refuse to fill prescriptions for any drugs on the basis of personal or moral convictions.

In addition, nine states introduced broader bills that would permit the refusal of any medical procedure or drug for any reason.

The courts are also dealing with at least a dozen lawsuits that have been filed in recent years by medical professionals suing over the right to exercise their personal beliefs while on the job.

Ah… lawsuits. Being the cynic I am, somehow I believe lawsuits play a large part in this battle in Congress. It is probably the single most issue that drives all legislation… the ability for legal recourse for a perceived “wrong”. Now we have it.

But it has to be said, not necessarily all of these objections for procedures is founded on religion. And for that, we can refer to a pertinent excerpt of the modern version of the Hippocratic Oath. [Note: Read in entirety at link]

I will apply, for the benefit of the sick, all measures [that] are required, avoiding those twin traps of overtreatment and therapeutic nihilism.

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I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know. Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.

Whether discussing “death with dignity” or abortion, and whether these procedures are required for the health of the patient (and not the child?) these are truly issues that tread on “playing with God”… no matter what your stance is on these issues.

At this point, the rebellious doctors mentioned above are trail blazers. For if a medical specialist, today, has moral objections to performing certain procedures, he/she has little on his side to refuse. He can face legal or employment repercussions from the medical institution, the community, or even the patient.

On the other hand, the patient has the option to find another doctor willing to provide the procedure.

In theory, with current laws on the books, discrimination against the doctors should not be possible. But according to Healthy and Human Services Secy, Mike Leavitt, this law is needed to enforce a 1973 SCOTUS decision that was meant to protect doctors who had to choose between being forced into procedures against their principles, or pay the piper with the consequences. Per an LA Times article on the “conscience rule”:

The new rule is needed to enforce the laws, Secretary Leavitt said. In a preamble to the rule, he expressed concern about “an environment in sectors of the healthcare field that is intolerant of individual objections to abortion or individual religious beliefs or moral convictions.”

Right now, medical professions are backed into a corner… and some are fighting back. They seek only to “reserve the right to refuse service”, so to speak.

This “refusal right” is compounded by other factors. Not only do conscientious objector doctors risk career repercussions, but face litigation by patients when they *do* perform these procedures.

The news is abundant with cases against those who have performed abortion procedures – perhaps even against their will – such as the woman who had a failed abortion, gave birth, and filed for charges against two doctors for damages that amounted to the costs of raising the unwanted child.

Or then consider the 17 year old who won a malpractice suit against at doctor who performed a successful abortion, but failed to inform her about the emotional and physical risks of abortion – including increased risk of breast cancer.

So the question is, if a segment of doctors feel certain procedures violate their Hippocratic Oath, or segue into their religious values, should they gain legal immunity from lawsuits for their “right of refusal”? And if they do, where are the boundaries of that moral judgment?

Conversely, is it also moral to force doctors into violation of their professional, moral or religious beliefs simply because the government recognizes a procedure – that is not life threatening – as legal?

It does present a moral… and legal… quandary.

This “conscience rule” also protects the doctors who “opt out” from discrimination by an institution who receives federal funding. However it does not protect institutions that force doctors to perform procedures averse to their principles.

As if that wasn’t enough, there’s another fly in the ointment. Family planning and abortion advocates protest the potential inclusion of other aspects of healthcare where moral concerns may arise. Again, per the LA Times story, abortion and family planning advocates are taking advantage of the potential loopholes with their protests.

The right-to-refuse rule includes abortion and other aspects of healthcare where moral concerns could arise, Leavitt’s office said, such as birth control, emergency contraception, in vitro fertilization, stem cell research and assisted suicide.

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“This gives an open invitation to any doctor, nurse, receptionist, insurance plan or even hospital to refuse to provide information about birth control on the grounds that they believe contraception amounts to abortion,” said lawyers for the National Women’s Law Center

I have to wonder if there are many doctors left that would refuse to allow birth control. Even most Catholics are nonchalant on this issue. And if there were, the amount of doctors left that would have no problem certainly doesn’t leave a woman, seeking birth control, in a pickle. But again, it strengthens the reality that the opposition will seize any message they believe will resonate… even if borderline on the absurd. And the encroachment by another’s religious beliefs is one of those hot buttons.

This is as much a connundrum as abortion itself. Should doctors be forced to perform procedures against their morals, what they believe is their Hippocratic Oath, or their religious tenets?

Or should their rights to refuse be protected, and a patient seek care from another medical professional?

The American College of Obstetricians and Gynecologists (ACOG) has an interesting publication on this from November of 20007, The Limits of Conscientious Refusal in Reproductive Medicine.

The PDF is not “cut/paste” friendly, but in the final “recommendations”, they suggest the doctors inform the patients of their “personal moral committments” in a timely matter… and refer them to someone else.

Sounds reasonable to me.

Perhaps there is something in the middle in compromise rules and amendments to be had to protect both the conscientious objector doctor, and a patient’s rights. But for now, the “conscience rule” issue is dropped right into Obama’s lap. He can reverse the rule, but the bureaucratic paperwork could take months. And either way he decides is bound to rile some segment of the electorate.

Without a doubt, this is one rule that will wind it way thru the court system if allowed to stand.

And what does the President-elect to say of the events?

An Obama spokesman, asked Thursday about the rule, said Obama “will review all 11th-hour regulations and will address them once he is president.”

Welcome to the Oval Office, Mr. Obama.