Right-to-Refuse Rule for Health Care Industry

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On Thursday, December 18, the Bush administration announced the "conscience protection" rule for the health care industry. It is said to provide protection to everyone in the health care industry (including doctors, hospitals, receptionists and volunteers in medical experiments) the right to refuse to participate in medical care they find morally objectionable. Mike Leavitt, HHS Secretary, said "This rule protects the right of medical providers to care for their patients in accord with their conscience." The rule is to take effect the day before President George W Bush leaves office.

You can read the Department of Health and Human Services 45 CFR Part 88 (Ensuring that Department of HHS Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law) in its entirety here (pdf file). The conscience provisions that are contained in 42 U.S.C. ยง 300a-7 are collectively known as the "Church Amendments" and have been an issue since the 1970s in debates over whether receipt of federal funds required the recipients of such funds to provide abortions or sterilizations. In summary, the main five provisions of the "Church Amendments" are

The first protects the doctor/hospital from being required to (1) the individual to perform or assist in a sterilization procedure or an abortion, if it would be contrary to his/her religious beliefs or moral convictions; (2) the entity to make its facilities available for sterilization procedures or abortions, if the performance of sterilization procedures or abortions in the facilities is prohibited by the entity on the basis of religious beliefs or moral convictions; or (3) the entity to provide personnel for the performance of sterilization procedures or abortions, if it would be contrary to the religious beliefs or moral convictions of such personnel.

The second prohibits discrimination against any physician or other health care personnel in employment, promotion, termination of employment, or the extension of staff or other privileges because the individual either "performed or assisted in the performance of a lawful sterilization procedure or abortion," or "because he refused to perform or assist in the performance of such a procedure or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral
convictions, or because of his religious beliefs or moral convictions respecting sterilization procedures or abortions."

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The third prohibits discrimination against any physician or other health care personnel in employment, promotion, termination of employment, or extension of staff or other privileges "because he performed or assisted in the performance of any lawful health service or research activity," or "because he refused to perform or assist in the performance of any such service or activity on the grounds that his performance of such service or activity would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting any such service or activity."

The fourth provides that "[n]o 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 [the Department] 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."

The fifth prohibits denying admission to, or otherwise discriminating against, "any applicant (including for internships and residencies) for training or study because of the applicant's reluctance, or willingness, to counsel, suggest, recommend, assist, or in any way participate in the performance of abortions or sterilizations contrary to or consistent with the applicant's religious beliefs or moral convictions."

In light of the "Church Amendments" why would the rules need to be extended? The new rule strengthens provider conscience rights, while not restricting health-care providers from performing any legal service or procedure. The new rules are expected to allow pharmacist to refuse to fill prescriptions for the morning after pill, will protect doctors who do not wish to prescribe birth control to unmarried girls or to provide artificial insemination, individuals who do not wish to participate in stem cell research or in legal (ie Oregon) assisted suicide.

Those in favor of the new rule say, "Health-care providers shouldn't have to check their consciences at the hospital door." Those against fear that patients may have problems receiving the care they need. These issues are most likely to arise with the morning after pills, fertility medicine, and end of life care.

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