“Southern District New York Ruling Reignites the Debate on Conscientious Clauses in Healthcare”
ABA Health eSource 03/05/20 Shamika L. Mazyck
“One must not lose sight of the fact that neither a pharmacist nor any other health care provider is a machine — they are people who perform jobs while also holding moral and ethical value systems that sometimes conflict with their professions....”1
In May 2019, the Department of Health and Human Services (HHS) published a Final Rule (Rule) recognizing the right of an individual or entity to abstain from participation in medical procedures, programs, services, or research activities on account of a religious or moral objection.2 The Rule was slated to go into effect on November 22, 2019, and has drawn eight challenges across four different federal district courts. The challenges were filed by an assortment of states and reproductive health groups.
On November 6, 2019, a judge in the Southern District of New York vacated the Rule.3 The Court reasoned that the Rule created rights and obligations that it did not have the authority to create under the Administrative Procedure Act (APA).4 The Court highlighted that the Rule required employers to offer an effective accommodation to employees with conscientious objections, rather than the reasonable accommodation required under Title VII of the Civil Rights Act. In using the word effective, the Court noted that the Rule expands protections for workers by allowing them to not only deny providing the care, but allowing them to also refuse to refer patients to others who will provide the care.5 Admitting that the Rule recognized and protected important rights, the Court found that if HHS wished to draft a rule governing conscientious objections, it must do so within the confines of the APA and the Constitution. The Court’s ruling will do little to settle the ongoing debate of conscientious objections in healthcare.
Conscientious objection in healthcare has been a long-standing political issue that transcends both health and employment law. The foundation for allowing conscientious objections in healthcare began with the 1973 enactment of the Church Amendments.6 Passed after Roe v. Wade,7 the Church Amendments were enacted to protect employees working in healthcare facilities receiving federal funds from being forced to perform abortions or sterilizations. The Church Amendments authorized withholding federal funds for healthcare facilities requiring people to act in manners “contrary to [their] religious belief or moral convictions.” In 2008, HHS released a rule regarding conscientious objection which expanded the list of services that can be refused based on conscientious clauses as well as the people who can be protected by conscientious clause objections.8 Some physicians feared the 2008 rule could have expanded conscientious protections to any medical services, including contraception and end of life care.9 The 2008 Rule defined several terms used in conscientious provisions, required entities that received HHS funds to provide a written certificate of compliance, and designated HHS's Office for Civil Rights (OCR) to coordinate the handling of complaints associated with conscientious objections.10 In 2011, HHS rescinded most of the 2008 rule, reasoning that the vagueness and complexity of the rule could “negatively affect the ability of patients to access healthcare if interpreted broadly.”11
“Conscientious objection” or “conscientious clauses” protections often require employers to accommodate healthcare providers who refuse to perform legal medical procedures due to religious or moral conflicts.12 In healthcare, conscientious objections commonly involve “the rejection of some action by a provider, primarily because the action would violate some deeply held moral or ethical value about right and wrong.”13 Ideally, these objections would only occur in non-emergent settings. Ethically, in an emergency, care must be provided despite moral objections. However, there may not be continuous compliance with the non-emergent expectation.14 These protections existed before the Rule. Many employers already have policies and protections in place regarding conscientious objections because it is required by Title VII of the Civil Rights Act.
Title VII of the Civil Right Acts protects religious beliefs and practices, as well as “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”15 Title VII requires employers to reasonably accommodate the sincerely-held religious beliefs, observances, and practices of its applicants and employees, when requested, unless the accommodation would impose an undue hardship on business operations, which is defined as more than a de minimis cost.16 Current and prospective employees have the right to be reasonably accommodated for their religious beliefs. This does not necessarily mean that someone can always refuse to do his/her job duties when they conflict with his/her religious beliefs, or that a company must always provide accommodations for a conscientious objector.17 In the healthcare setting, common policies and practices for conscientious objections dictate that a protected care refusal must include: (1) a serious violation of a deeply held conviction, (2) the deeply held conviction must be plausible, (3) there is no undue burden to the patient, and (4) the treatment is not considered essential to the work.18
Additionally, many states have passed laws regarding conscientious objections that apply to both private and federally funded healthcare institutions.19 These state laws vary in the types of protections offered. For example, some state laws require patient protections, meaning the healthcare worker has the right to refuse but must refer the patient to other sources for treatment. Other state laws allow refusal of services for conscientious objections without the mandated referral to obtain the service.20 Some states have laws applying specifically to pharmacists, while others apply generally to healthcare providers.21
The Rule took the conscientious protections further than Title VII and some state laws by requiring effective accommodations, as opposed to the previously required reasonable accommodations, for conscientious objections. The Rule offers protection to workers by allowing them to not only deny care, but also to deny referring patients to other providers who may offer the care. This is based on the New York Court’s reasoning that the word “effective” indicates that workers would not be required to undertake “additional action,” such as referral.22 The Rule broadly defines the activities in which healthcare personnel may refuse to participate on account of conscientious objections.23 Specifically, the Rule allows objections from “counseling, referral, training, or otherwise making arrangements” for a procedure.24 Under the Rule, any employee in the care process, such as a receptionist answering the phone, an ambulance driver, or an elevator operating service, would be allowed to object to providing care.25 Further, the Rule clarified what covered entities needed to do to comply with applicable conscientious provisions.26 The Rule also specified compliance obligations for covered entities, including cooperation with OCR, maintenance of records, reporting, and non-retaliation requirements.27
After the New York ruling, the U.S. District Court for the District of Maryland and the U.S. District Court for the Northern District of California entered orders for similar cases pending in those courts consistent with the decision from New York.28 In the fall of 2019, HHS announced that the Rule would remain vacated and would not in go into effect unless OCR receives additional instruction from the courts.29 In its statement, however, HHS made clear that OCR will continue to receive and investigate complaints of discrimination based upon a medical provider’s conscientious objections under the still standing provisions of the 2008 rule. Undoubtedly, the New York ruling will spark conversations on whether conscientious objections have a place in healthcare at all.
Those in favor of allowing them will argue that conscientious objections are necessary to protect the rights of the healthcare provider. They argue that if a healthcare provider is forced to care for a patient in violation of the provider’s beliefs, then the healthcare worker is being asked to forfeit his/her individual rights.30 If a provider is forced to deliver care, there is a potential that patients may encounter negative attitudes and dispositions during traumatizing moments in their life. The current legal status also acknowledges the deep moral and religious convictions for healthcare providers. The majority of healthcare providers assert that they would rather resign than act in a manner that conflicts with their religious beliefs.31 If healthcare providers feel there is no protection for their religious beliefs, they may refuse to enter the medical profession.32 This could contribute to a shortage of healthcare providers, resulting in public health concerns due to the decreased access to healthcare.33 In addition, requiring healthcare providers to work without the ability to exercise their moral beliefs may prevent them from providing the compassionate elements of care that are essential to providing care to patients.
Opponents of conscientious objections feel that conscientious objections are a violation of medical ethics because they allow healthcare providers to impose their personal beliefs on patients.34 Opponents of conscientious objections lament the vagueness of the Title VII protection, and fear that legislation like the Rule, which seeks to expand protections for conscientious objections, will lead healthcare down a slippery slope of discriminatory practices. Reproductive rights advocates argue the Rule would hurt those seeking reproductive care in the LGBTQ community because it may limit the information patients share with their doctors, and there may not be alternate healthcare options in some communities.35 Moreover, reproductive rights are a common theme, but what about other concerns? In some states, conscientious protections have expanded to include sterilizations, contraceptives, and extension/withdrawal of life-saving procedures.36 Additionally, there are some state laws that prohibit disciplinary action for a person wishing to opt out of treatment or counseling of sex reassignment or gender transitioning.37 As an example of the flexibility of current conscientious protections, on their basis of moral conviction, one healthcare provider could refuse to remove a feeding tube while another could refuse to insert a feeding tube on the same patient. Both providers would be protected, leaving patients to bear the burden of negative encounters with providers’ moral convictions.
Healthcare providers are a valuable resource and an integral part of the healthcare system. More than a profession, healthcare itself is based on a science and evidence-based practices.38 The New York ruling will not settle the debate surrounding conscientious objections, but ideally it will help develop legislation that strikes the delicate balance between protecting religious freedoms and adding clarifying parameters around its application so patients’ rights are not sacrificed at the expense of healthcare provider’s freedoms.
- 45 C.F.R. § 88 (Full rule available at: https://www.federalregister.gov/documents/2019/05/21/2019-09667/protecting-statutory-conscience-rights-in-health-care-delegations-of-authority).
- United States District Court of Southern District of New York vs. United State Department of Health and Human Services et. al, Case 1:19-cv-04676-PAE.
- 5 U.S.C.A. § 500.
- Sanger-Katz, M., Trump Administration Strengthens ‘Conscience Rule’ for Health Care Workers, New York Times, May 2, 2019, available at https://www.nytimes.com/2019/05/02/upshot/conscience-rule-trump-religious-exemption-health-care.html.
- 42 U.S.C. § 300a-7.
- Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), holding modified by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (a case where the Supreme Court ruled that a pregnant woman had the right to have an abortion without excessive or unreasonable government restrictions).
- 73 Fed. Reg. at 78073 Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, available at https://www.clsnet.org/document.doc?id=126;
- Henry, T. A., Obama Voids Bush Conscience Rule in Favor of Decades old Protections, American Medical News, May 7, 2011, available at https://amednews.com/article/20110307/government/303079955/1/.
- Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, 73 Fed. Reg. 78072-01.
- Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws, 76 Fed. Reg. 9968-02.
- Chudoba, G., Conscience In America: The Slippery Slope of Mixing Morality With Medicine, 36 SW U.L. Rev 85, 85 (2007).
- Lachman, V. D., Conscientious Objection In Nursing; Definition and Criteria for Acceptance,” Ethics, Law, and Policy, Vol. 23 (2014) available at https://pdfs.semanticscholar.org/ed19/4d4cdc341c71ac55ff781fd8a823d1c5057e.pdf.
- Morrison, J., Symposium: The Future of Right and Conscience in Health Care: Legal and Ethical Perspectives, 9 Ave. Maria L. Rev. 141, 153 (2010).
- Department of Health and Human Services, available at http://www.westsoundworkforce.com/conscience-objection-in-the-workplace/(last visited December 15, 2019).
- Lachman, V. D., Conscientious Objection In Nursing; Definition and Criteria for Acceptance,” Ethics, Law, and Policy, Vol. 23 (2014).
- 745 Ill. Comp. Stat. Ann. 70/4 – No physician or health care personnel shall be civilly or criminally liable to any person, estate, public or private entity or public official by reason of his or her refusal to perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care service which is contrary to the conscience of such physician or health care personnel; Maine Rev. Stat. tit. 22, 1903 – Physicians and agents of medical and related facilities have the right to refuse to provide family planning services when such actions would interfere with moral or religious beliefs.
- Texas Insurance Code § 1271.007 (2003) – Allows a health maintenance organization, physician, or provider to refuse to recommend, offer advice concerning, pay for, provide, assist in, perform, arrange, or participate in providing or performing any health care service that violates the religious convictions of the health maintenance organization, physician, or provider.
- Pennsylvania Cons. § 27.103 – Pharmacists may decline to fill or refill a prescription if, in the pharmacist’s professional judgment exercised in the interest of the safety of the patient, the pharmacist believes the prescription should not be filled or refilled. When a pharmacist recognizes that religious, moral or ethical beliefs will result in the refusal to fill a prescription that is otherwise available in a pharmacy, the pharmacist has a professional obligation to take steps to avoid the possibility of abandoning or neglecting a patient.
- New York v. United States Dep't of Health & Human Services, Med & Med GD (CCH) P 306651 (S.D.N.Y. Nov. 6, 2019).
- Conscience Rule Vacated, HHS.gov, available at https://www.hhs.gov/conscience/conscience-rule-vacated/index.html.
- Evan, S., Rights of Conscience In Healthcare, Renewing Minds, April 2013, available at http://www.uu.edu/journals/renewingminds/3/RM_Issue3_Apr2013_Evans.pdf
- Fiala, C., & Arthur, J. H., There is no defence for “Conscientious Objection” in Reproductive health Care, available at https://www.ncbi.nlm.nih.gov/pubmed/28757115.
- Opilo, E. & Huang, B., Allentown LGBTQ center joins lawsuit against Trump administration over ‘conscience rule’” The Morning Call, May 28, 2019, available at https://www.mcall.com/news/pennsylvania/mc-nws-pa-conscience-rule-lawsuit-bradbury-sullivan-20190528-25bmzklmvfahjgqcx7trn6iaci-story.html.
- Chudoba, G., Conscience In America: The Slippery Slope of Mixing Morality With Medicine, 36 SW U.L. Rev 85, 85 (2007).
- Mississippi HB 1523.
- “Why We Need to Ban ‘Conscientious Objection’ in Reproductive Health Care, available at https://rewire.news/article/2014/05/14/why-we-need-to-ban-conscientious-objection-in-reproductive-health-care/