How the HHS Moral Conscience Clause Gives God like Powers to Individuals

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By R Carter

The Department of Health and Human Services final ruling on the Federal Health Care Provider Conscience Protection Laws, referenced here as ”moral conscience clause” goes into effect in July 2019. The announced goal of the ruling is to give greater flexibility to healthcare providers who do not want to participate in abortions and sterilization procedures. Allowing those, who based on religious beliefs, believe that abortions and contraception of any kind, are a violation of mainstream Christian values. See “Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws”.

The rule is designed to reinforce the individual rights of those who work for healthcare entities which perform abortions and sterilization procedures, i.e. the tying of the fallopian tubes in women or the vas deferens in men, to prevent pregnancy.  It also protects individuals who would be required to participate in assisted suicide.

Prior to the ruling, businesses which failed to provide these services under Federal law could lose their participation in Medicare and Medicaid as well as other types of federal financial assistance.  See this fact sheet.

But the new ruling includes a clause of, “moral convictions”, which extends the rights of individuals to include personal moral convictions as a basis for denying participation in medical services. As stated, the new rule reads as follows: “No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by [HHS] if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.” 42 U.S.C. 300a-7(d).

God like Powers for Individuals

Under the broad definition of this new rule, an individual can exercise their own moral convictions in emergency situations. For example, a first responder might refuse to carry or administer naloxone to rapidly reverse opioid overdose, citing an objection to encouraging drug abuse. Even when it is arguable that saving such a life could lead to another chance for the individual to receive treatment later becoming a responsible and productive member of society.Likewise this same individual could refuse to participate in assisted suicide or refuse care to unmarried woman with a ruptured ectopic pregnancy, citing moral convictions to both sets of behavior behind the circumstances leading up to these events. Both situations expose a flaw in the moral conviction argument, granting a single individual life and death powers based on their personal moral convictions. Allowing them to play God in a manner of speaking, deciding who lives and who dies based on a singular moral point of view. Regarding fears prescribers have in treating chronic pain with opiates, a moral conviction clause allows a physician to refuse or discontinue the use of opiates based on their belief that they contribute to drug abuse or using them is contrary to the national health crisis declared by the White House.

Granted these are extreme scenarios and very disturbing but as the regulation is written, they could occur. As a former anesthesia provider I see this rule as a Pandora’s Box for all kinds of insanity because there is no legal precedence, federal or state, for what is included or excluded as moral conscience in this context. Here’s some examples. I see the activity of free climbing, as in using nothing but your hands and feet to climb a rock face, as a morally objectionable by placing a life at risk. I thinks public parks and lands should forbid this kind of activity. If such a person fell and was brought into my OR on a night I was on call, under this rule I would have the right to refuse the anesthetic because I find his activities morally objectionable, at which point he would likely die. Maybe internally I’m thinking to myself, well that’s one less idot taking up space on the planet. And you can bet on it, there are people who think exactly that way working in healthcare today. I also have moral objections to gambling, skydiving, drag racing on public streets, fraternity initiation rights or putting money into high risk investments. I find this new rule morally objectionable. Do I have the right to refuse care to individuals who do these things or support this rule because I object based on my moral convictions? According to the new rule, I do.

Furthermore, given this new right granted me by Federal Regulations, I may decide to start requiring patients to fill out a questionnaire about such matters prior to providing medical services. All as part of my efforts in screening out undesirables who I object to based on my moral convictions. Like any other business I now reserve the right to choose who I provide service to under my Federally protected moral conscience rights.

What will happen to patients who are permanently comatose following head trauma or some other medical illness such as encephalitis. Many object to efforts at keeping such individual alive for prolonged periods. Some objections are based on moral convictions but others are not, based primarily on the costs of doing so. Such individuals could now claim a moral objection to such efforts and in doing so, begin euthanizing efforts based on so called moral convictions. The point is, do we really know when a person has a moral conviction or some alternative reason for why they choose a course of action?

In the wrong hands, i.e. someone with no moral convictions whatsoever, such a rule is a license to fabricate nearly anything, for nearly any reason and none of us would be able to prove otherwise. Eventually you will have someone doing just that, not as a means of exercising their rights but because it’s a means to an end. One which allows them to strike back at another person while giving themselves a get out of jail free pass. In this context the new rule is a license to kill and its just a matter of time before someone uses it in this capacity. Welcome to America 007.

What about Patient Rights?

These are disturbing questions and should give everyone a moment of pause to consider what they say or share with a healthcare provider during a medical examination. What may seem like nothing more than casual conversation may in fact be an effort to elicit personal information which can then be used as the basis for denying care and treatment. 

Given such plausible scenarios, should healthcare providers be required to provide advanced notice with regards to which moral objections they have or which moral behaviors may lead to a denial of care? Requiring healthcare provider to provide such disclosures only seems fair given the consequences they have for patients .Doing so would become part of the informed consent process, as patients have the right to know which issues are morally objectionable and may lead to a denial of care. After all, this federal regulations does not deny a patient their right to privacy regarding non-medical issues, so patients can’t be compelled to disclose non-medical information as a condition for treatment.

For example, if your a chronic pain patient being treated with opiates and your physician asks if you use tobacco, is he asking because doing so has an impact on how much he prescribes or is he asking because he believes it’s an indication of addictive behavior? In most cases your answer would be used as an indicator of addictive behavior even though there is no medical science which links the two together conclusively, yet your answer may be enough to turn his decision one way or the other.

Imagine a patient going under an anesthetic for an intra abdominal  procedure only to discover upon entering the abdominal cavity that the patient is pregnant and continuing the procedure is likely to put the pregnancy at risk. If your moral conscience values prevent taking such risks, do you wake the patient up without performing the surgery? What if the procedure was for cancer? The patient is on the table but unconscious, you’ve started the procedure, do you chose the life of the mother or the potential life of the fetus?

These things happen, more often than you might think, so it becomes imperative for a patient to know the healthcare providers moral convictions before services are rendered.

Legal and Public Health Implications

The final rule widens the avenue for denying access to services, even constitutionally protected services like abortion, to women; to persons who are gay, lesbian, bisexual, or transgender; and to others. Under the Church amendments, individuals cannot be required to “assist in the performance” of health services that offend their religious or moral beliefs. The rule broadly defines that phrase to include any action with an “articulable connection” to the service to which the provider objects, such as counseling or medical referrals. In that way, the rule not only allows health workers to deny services, but also to limit information on where patients could receive the service. Health care professionals and entities cannot be required to inform patients of available funding or contact information. The rule’s expansive definition of covered entities could, for example, extend to a pharmacist filling a prescription for contraceptives, a receptionist scheduling an appointment for sexually transmitted disease treatment, or an ambulance driver transporting a woman for an emergency abortion.

The HHS rule does not take access to care into consideration, which will primarily affect rural and underserved communities. Forty-six states already have laws or policies allowing health care entities to refuse to provide abortion services, which means that women who are poor, disabled, or otherwise disadvantaged will find it hard to access reproductive health services. Underfunded and understaffed community health centers in predominantly rural areas do not have the resources to hire additional staff to cover services when their health workers opt out on religious or moral grounds. This could perpetuate and increase existing health disparities.

The final rule also has vital public health implications, allowing parents to object, on religious or moral grounds, to their children receiving certain health services relating to suicide prevention, hearing loss screenings for newborns, child abuse prevention and treatment, and pediatric vaccines. Amidst a US measles outbreak, the rule could reinforce dangerous misconceptions about vaccine safety and effectiveness, placing religious beliefs above the health of children. Parents could object to vaccines for their children, while nurses could decline to administer potentially life-saving vaccines.

Finally, the rule could reinforce stigmas or legitimize discrimination against women; gay, lesbian, bisexual, or transgender individuals; those with HIV/AIDS, individuals forcefully victimized by sex trafficking or those who have been previously treated for substance or alcohol abuse. The list of personal biases, now qualified as personal moral convictions, could literally lead to any interpretation and will no doubt bring about widespread tragedies the likes of which our nation has seen in decades.

The new rule will discourage treatment-seeking behavior and create new stigmas, the likes of which we can’t imagine. Discrimination conflicts with other civil rights protections at state and federal levels, and can dissuade entire classes of persons from seeking needed medical care.

The new rule takes effect July 2019 and major questions remain on how the rule will be enforced. For example, how will it affect Emergency Medical Treatment and Labor Act requirements for emergency medical care? How will it align with anti discrimination provisions under the Affordable Care Act? San Francisco recently launched a lawsuit against HHS alleging the rule will impair access to care.

Ethically, healthcare workers and organizations have the right to their sincerely held religious and conscientious beliefs. Patients also have rights to be treated fairly, especially when it comes to their health and well-being. The lingering question is whether that delicate balance has now tipped against patients who deserve equal access to essential medical services.

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