The Right Of
Conscience
Definition
Healthcare
Right of Conscience
The freedom to practice
healthcare in accordance
with your deeply held
religious, moral or ethical
convictions.
Martin Luther King
On some positions cowardice asks the
question, 'Is it safe?'
Expediency asks the question, 'Is it politic?'
Vanity asks the question, 'Is it popular?'
But conscience asks the question, 'Is it
right?'
And there comes a time when one must take
a position that is neither safe, nor politic,
nor popular. But ... because it is right.
Harper Lee
To Kill a Mockingbird, 1960
The one thing that doesn't
abide by majority rule
is a person's
conscience.
This is Not a New Issue
 Moral Debate 2500 Years Ago
 I will neither give a deadly drug to
anybody if asked for it, nor will I make a
suggestion to this effect. Similarly I will
not give to a woman an abortive remedy.
But in purity and in holiness, I will guard
the sanctity of life and my role as healer.
Hippocratic Oath, 429 BC
What Right?
 Congress shall make no law
respecting religion or
prohibiting the free exercise
thereof.
Bill of Rights, First Amendment
Writing the First Amendment
 James Madison, June 7, 1789 The Civil Rights of none shall be
abridged on account of religious belief or worship, nor shall any
national religion be established, nor shall the full and equal
rights of conscience be in any manner, nor on any pretext
infringed. No state shall violate the equal rights of conscience or
the freedom of the press, or the trial by jury in criminal cases.
 House Select Committee, July-28 No religion shall be established
by law, nor shall the equal rights of conscience be infringed.
 House Version, Aug-20 Congress shall make no law establishing
religion, or to prevent the free exercise thereof, or to infringe the
rights of conscience.
 Final Version Sept 24 Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.
Founding Fathers
 The rights of conscience we never
submitted, we could not submit. We are
answerable for them to our God.
 I consider the government of the U.S.
as interdicted by the Constitution from
intermeddling with religious
institutions, their doctrines, discipline,
or exercises.
Thomas Jefferson
James Madison
 Conscience is the most sacred of all
property.
 The Religion of every man must be left
to the conviction and conscience of every
man; and it is the right of every man to
exercise it as these may dictate.
AMA Statement
 AMA reaffirms that neither physician,
hospital, nor hospital personnel shall be
required to perform any act violative of
personally held moral principles. In these
circumstances, good medical practice
requires only that the physician or other
professional withdraw from the case, so
long as the withdrawal is consistent with
good medical practice.
 Except in emergencies, physicians shall be
free to choose whom to serve, with whom
to associate and the environment in which
to provide medical care.
World
Medical Association
The physician should be
free to make clinical
and ethical judgments
without inappropriate
outside interference.
Other Countries/Codes
 European Convention on Human Rights
 Everyone has the right to freedom of thought, conscience
and religion; this right includes… freedom …to manifest his
religion or belief in worship, teaching, practice and
observance.
 Canadian Medical Association
 Physicians who object to abortion for reasons of conscience
are advised to inform their patients of their objections so
that the patient can consult another physician. The CMA
stresses that physicians who decline to participate in
abortion should not be discriminated against, and
emphasizes the need to respect the rights of conscientious
objectors, especially those in training for obstetrics and
gynecology, and anesthesia.
Another Perspective “The Right of Refusal”
 “A threat to reproductive rights.”
 “Health related decisions made between a
provider and patient should be made on the
personal welfare and healthcare needs of the
patient - not the morals or belief of the
caregivers.”
 “While we firmly believe that all people have
a right to their own opinions and moral beliefs,
it is unethical for healthcare providers to stand
in the way of a woman’s access to safe, legal
and professional healthcare.”
Refusal Clauses
Planned Parenthood Website
Battle Fronts
 Plan B and Pharmacists
 Insurance Plans
 Abortion Training
 Standards of Care
 Direct Pressure on
Professionals
 Bypass or emasculate
present laws.
State
Attacks on ROC
 Alaska (1997) - Valley Hospital Assoc.
 California (2003) - Benitez v. North Coast
Women's Medical Care
 Illinois (2005) – Gov. Rod Blagojevich
 Washington (2007) - Pharmacy Regs.
 Many More Since
Training Issues
 Overt: Mandatory Abortion Training in
NYC
 2002: Mayor Bloomberg orders abortion
training in All NYC medical schools
 NY guidelines make it very difficult to
conscientiously object
 Covert: Pro-life students denied
admission (Issues in Law and Medicine, Spring, 1996)
ACOG Committee Opinion
# 385, 11/07
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Patient autonomy final arbitrator for Rx
Right to Demand Rx = Right to Refuse Rx
ROC is just a personal opinion
Moral obligation to patient over rides ROC
Inconvenience imposes providers beliefs on pts.
Patient’s concept of well-being trumps
Must refer for abortion
If can’t timely refer, must provide
Those who refuse to provide abortions should
only practice in areas where abortion services can
be provided.
American Board of
Obstetrics and Gynecology
New policy issued in January 2008:
certification contingent on compliance
with ACOG ethical principles.
The combination of ACOG Ethics
Committee Number 385 and the
ABOG 2011 Bulletin for Basic
Certification makes for a toxic
environment for healthcare providers.
CMDA Faith-Based
Professional Survey
 40% of member report being
pressured to compromise convictions
 >43% know someone else who was
pressured
 >24% have lost position, promotion
or compensation as a result
 >88% think the problem is getting
worse
CMDA Public Poll
September 2008 CMDA commissioned
the polling company TM, Inc. to
conduct a nationwide telephone poll
 +/- 3.1% at 95% confidence level
 42% think law obligates doctors to
perform/refer for abortion
 38% no obligation
 11% unsure
 5% depends
 If we don’t protect personal integrity, we
would go down a dangerous avenue. By
taking a professional license you do not
step out of your personal morality. You
have taken on an additional
responsibility, but that does not mean you
have given up your integrity as a person.
Linda Rankin, Bioethicist, U of TN
Christian Science Monitor, 4/26/04
Conscience & Healthcare
 Is our healthcare system in need of more
conscience-driven doctors or more
"ethically neutered" doctors?
 Do we want medical schools to
systematically strip our future doctors from
any and all religious and ethical convictions
that have not been approved by the state?
 Your doctor's conscience may some day be
the last line of protection between you and
those who would profit from your early
death.
Federal Law
 Church Amendment
 Public Health Services Act
 Medicare/Medicaid
 42 U.S.C. §238n
 Weldon Amendment
Limited to federally funded programs.
No enforcement provisions.
State Laws
 45 states have some sort of ROC laws
 Arizona
 36-3205 . Health care providers; immunity from liability;
conditions
 A health care provider is not subject to criminal or civil liability or
professional discipline for any of the following:
1. Failing to comply with a decision or a direction that violates the
provider's conscience if the provider promptly makes known the
provider's unwillingness and promptly transfers the responsibility
for the patient's care to another provider who is willing to act in
accordance with the agent's direction.
 State by State Laws
 http://www.consciencelaws.org
More Current Events
 January 20, 2009: HHS policy goes into
effect protecting right of conscience
 Can’t discriminate in the employment, promotion,
termination, or the extension of staff or other
privileges to any physician or other healthcare
personnel because he performed, assisted in the
performance, refused to perform, or refused to
assist in the performance of any lawful health
service or research activity on the grounds that
his performance or assistance in performance of
such service or activity would be contrary to his
religious beliefs or moral convictions, or because
of the religious beliefs or moral convictions
concerning such activity themselves.
 Anaphylactic reaction by proabortions groups and some media
 False claims, e.g., women will not be
allowed contraception
 Media blitz
 Legal action taken
 1/15/09 - PP, ACLU, 7 State Attorneys
General file suit in CT to overturn
Overturning HHS
Regulations
 February 2009
 President Obama announces he will
rescind the regulation
 April 9, 2009
 30 Day Public Comment Period ended
 300,000 comments
 All reference to regulations taken off
HHS website.
 Gutted 12/10
Freedom2Care.org
 Represents 50 organizations
 Education & Mobilization
 Blogs, Twitter, Facebook
 Polls/Surveys
 91% of faith-based physicians
agreed, “I would rather stop
practicing medicine altogether
than be forced to violate my
conscience.”
 88% Americans say it is important
that they have a similar set of moral
beliefs as their healthcare
professional.
 87% oppose forcing professionals to
violate their moral objections.
 63% support conscience regulations
 54% less likely to vote for
Congressman that oppose ROC.
Healthcare Reform
 Church, Weldon and other laws
only apply to annual HHS
appropriations
 Reform bill only protects physicians
from insurance companies coercing
them to do abortions
 No protection for other professionals
 No protection from referral
 No protection on other issues
Why I Don’t Refer?
 Referral means:
 I endorse the competency, judgment
and ethics of the doctor to whom I’m
referring.
 I enter into a professional relationship
with that doctor.
 I will receive a report back from him.
 I believe they will “do no harm.”
Moral Complicity
 CMDA believes moral complicity with
evil does not exist when all the following
conditions are satisfied:
 our intent is for good;
 the association with the past or present evil is
sufficiently uncertain, or the act is sufficiently
distanced from the original evil act; and
 the action does not reward, perpetuate, justify,
cooperate with, or ignore the original evil.
Conscience Rights
 Protection of someone’s right to
object does not equate with support
for that position.
 Indeed, we must pay special
attention to protecting the rights of
others when we do not support their
position.*
*(Claims of conscience rights can be abused)
Insurance Mandate
 Sec. HHS Authority
 Institute of Medicine
 Must provide all FDA Approved Contraceptives
 Unless Religious Employer:
 (a) Whose purpose is the inculcation of religious
values;
(b) That primarily employs persons who share the
religious tenets of the employer;
(c) That primarily serves persons who share the
religious tenets of the employer; and
(d) That is a nonprofit organization under section
6033(a)(2)(A)(i) or (iii) of the IRS Code
Ministerial Exemption
 Lutheran Church v. Equal Employment
Commission
 4th Grade Teacher Replaced So Sued School
 Court considered her a minister
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Commissioned by Church
Had religious training
She claimed a ministerial housing allowance
Organized and led chapel at school and gave religious training
 Court Said, Requiring a church to accept or retain an
unwanted minister, or punishing a church for failing to
do so, intrudes upon more than a mere employment
decision. Such action interferes with the internal
governance of the church, depriving the church of
control over the selection of those who will personify its
beliefs.
Why This Assault on
Conscience?
What will convince them? This, and this only:
cease to call slavery (abortion) wrong, and join
them in calling it right. And this must be done
thoroughly - done in acts as well as in words.
Silence will not be tolerated - we must place
ourselves avowedly with them…..The whole
atmosphere must be disinfected from all taint of
opposition to slavery (abortion), before they will
cease to believe that all their troubles proceed
from us."
Abraham Lincoln
Cooper Union address of 1860
The extent to which an institution seeks to
expunge individual conscience and moral
autonomy is the extent to which it is
totalitarian and dangerous. The idea that I
resign my conscience to the institution or
to the state is perhaps the single most
pernicious notion in human history. It is at
the heart of the wars and genocides of this
century and the last.
Crispin Sartwell
Los Angeles Times
Self Described
“Pro-Choice Atheist”
Resources
 <freedom2care.org>
 <cmda.org>
 Ethics Statements, PP’s, Standards
for Life, “Just Add Water” DVD’s
 <consciencelaws.org>
 <physiciansforlife.org>
 “Protecting the Health Care
Provider's Right of Conscience”
Teresa Colette, JD <chbd.org>
 Book - Issues of Conscience
Laurel Hughes