An Attack on Rights of Conscience: Bishops' Fact Sheet on HHS Mandate

United States Conference of Catholic Bishops
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The HHS Mandate for Contraception/Sterilization Coverage:

An Attack on Rights of Conscience 

How important is the right of conscience in American tradition?
It has always been of paramount importance: “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority” (Thomas Jefferson, 1809).


In the past, has the federal government respected conscientious objections to procedures such as sterilization that may violate religious beliefs or moral convictions?
Yes. For example, a law in effect since 1973 says that no individual is required to take part in “any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services” if it is “contrary to his religious beliefs or moral convictions” (42 USC 300a-7 (d)). Even the Federal Employees Health Benefits Program, which requires most of its health plans to cover contraception, exempts religiously affiliated plans and protects the conscience rights of health professionals in the other plans. Currently no federal law requires anyone to purchase, sell, sponsor, or be covered by a private health plan that violates his or her conscience.


How has the Department of Health and Human Services departed from this policy?
By issuing a mandate for coverage of sterilization and contraceptives (including long-lasting injections and implants, and “morning-after pills” that may cause an early abortion) in virtually all private health plans. In August 2011 HHS included these procedures in a list of “preventive services for women” to be required in health plans issued on or after August 1, 2012. On January 20, 2012, HHS reaffirmed its mandate while deferring enforcement against some religious employers until August 2013.


Is it appropriate to require coverage of these as “preventive services”?
No. The other services on HHS’s list seek to prevent serious disease – breast cancer, lung cancer, AIDS. Pregnancy is not a disease. The Institute of Medicine committee that compiled the “preventive services” list for HHS said in its report that unintended pregnancy is “a condition for which safe and effective prevention and treatment” need to be more widely available – setting the stage for mandated coverage of abortion as the “treatment” when prevention fails. Note that women who suffer from infertility, which really is an illness, were ignored in this mandate.


Didn’t HHS include a religious exemption?
Yes, an incredibly narrow “religious employer” exemption that fails to protect many, perhaps most, religious employers. To be eligible an organization must meet four strict criteria, including the requirement that it both hire and serve primarily people of its own faith. Catholic schools and hospitals would have to eject their non-Catholic employees, students and patients, or purchase health coverage that violates their moral and religious teaching. Jesus and his apostles would not have been “religious enough” for the exemption, since they healed and served people of different faiths. The exemption provides no protection at all to sponsors and providers of health plans for the general public, to pro-life people who own businesses, or to individuals with a moral or religious objection to these procedures.

Isn’t this an aspect of the Administration’s drive for broader access to health care for all?
Whether or not it was intended that way, it has the opposite effect. People will not be free to keep the coverage they have now that respects their convictions. Organizations with many employees will have to violate their consciences or stop offering health benefits altogether. And resources needed to provide basic health care to the uninsured will be used instead to facilitate IUDs and Depo-Provera for those who already had ample coverage. This is a diversion away from universal health care.


But won’t this provide “free birth control” for American women?
That claim is false for two reasons. First, the coverage will be mandatory, not a matter of free choice for any woman. Second, insurance companies will not be able to charge a co-pay or deductible for the coverage, so they will simply add the cost to the standard premium everyone has to pay – and among those being required to pay will be people who oppose it on conscience grounds. That is no victory for freedom.


By objecting to this coverage, is the Catholic Church discriminating against women?
Not at all. The Church’s teaching against early abortion is based on respect for all human life, male and female. Its teaching against contraception and sterilization is based on respect for the power to help generate a new human life, a power held by both men and women – so health plans in accord with Catholic teaching do not cover male or female sterilization. It is the HHS mandate that shows disregard for women, by forcing them to purchase this coverage whether they want it or not.


Do religious employers violate the consciences of women who want birth control, by refusing to cover it in their employee health plans?
No, they simply decline to provide active support for procedures that violate their own consciences. If an employee disagrees, he or she can simply purchase that coverage or those procedures elsewhere.


What solution to this dispute would be acceptable?
Ideally, HHS can leave the law the way it has always been, so those who provide, sponsor and purchase health coverage can make their own decisions about whether to include these procedures without the federal government imposing one answer on everyone. If HHS refuses, it will be especially urgent for Congress to pass the “Respect for Rights of Conscience Act” (HR 1179/S. 1467), to prevent health care reform act from being used to violate insurers’ and purchasers’ moral and religious beliefs.
1/20/12 

Conscience and Truth

“Conscience” in a Culture without Truths?
By Hadley Arkes

In the Republican debate in South Carolina, Professor Robert George raised the critical issue of protection for claims of “conscience.” That question has cut most deeply, of course, on the matter of abortion. The Hyde-Weldon Amendment was brought forward under federal law to protect doctors and nurses who did not wish to become accomplices in abortion. But with Obamacare, the administration has issued regulations that notably weaken those protections, both for the provision of abortion and contraception.

And now, with the movement toward same-sex marriage, another front has opened: Once same-sex marriage was established in Massachusetts as part of the fundamental law, agencies of adoption were compelled to place children with couples of the same-sex or leave the field. Catholic agencies, faced with the challenge, chose to leave the field rather than comply.

But as Walter Olson has pointed out, these developments have moved apace even when the states have not established same-sex marriage. It has been quite sufficient to have laws barring discrimination based on “sexual orientation.” Those laws are enough to impose sanctions on photographers who express their unwillingness to take photos at a same-sex wedding.

But behind the arguments over claims of “conscience” there is an eerie truth that dare not speak its name: The understanding of “conscience” has been deflated in our current law, along with the understanding of “religion.” John Paul II reminded us forcefully that “conscience” involves an appeal to an objective set of moral norms outside ourselves. The trend in the law, however, has been to accept as claims of conscience any beliefs personally and intensely held.

As Justice Scalia has remarked, we are at the risk of backing into a system in which “each conscience is a law unto itself.” The laws on conscientious objection were once aligned with the God of Christians and Jews. But that gave way over time to the test of “belief in a Supreme Being,” and even that had to give way. The Supreme Court eventually came to uphold the claims of young men who were professed atheists, but held to political or ethical beliefs that the judges were willing to treat as the equivalent of a “religious” conviction.
With this dispensation, we could imagine a state of affairs in which the laws forbid abortion once again, but a band of practitioners assert their claims of “conscience” to perform abortions as a matter of their own firm beliefs. They would assert the religion of irreligion.

Years ago, in the seminars arranged by Fr. Richard Neuhaus, we would bring together lawyers litigating over religious freedom, and some of them bridled when they were asked to explain how they would rule out such claims to religious standing. We had, after all, the union of prostitutes in California under the banner of COYOTE: Call Off Your Old Tired Ethics. What if they claimed to be a religious sect?

The lawyers were impatient with these questions; they preferred to assume that we all knew what we meant by “religion.” But of course the law must be in place to represent a distinctly moral concern and have a filtering effect: The laws will not stand back and permit widows to be burned on funeral pyres under the name of religion, or even permit parents of Jehovah’s Witnesses to withhold blood transfusions from their children. There is no way for the law to avoid the question of what truly stands as a legitimate religion.

The law had a firmer clarity when it could simply take its bearings from James Madison’s understanding of religion: “the duty which we owe to our Creator and the manner of discharging it.” That Creator was of course the God of Israel, and the duties were bound up with the Laws that sprang from that Lawgiver.

With that understanding the law was anchored, not merely in beliefs, but in truths held with conviction about the Author of the Laws of nature and the moral force of those laws. The problem before us now is just what claims of “conscience” mean when they are detached from that body of truths.

We are flying an important banner when we unfurl the cause of “conscience,” but we are flying that banner in a culture that no longer understands us as we understand ourselves. Most people around us think we are simply invoking intense, personal beliefs when we invoke claims of conscience on abortion.

And so Nancy Pelosi, resisting the Hyde-Weldon Act on conscience, recoiled from the notion that people could invoke their “beliefs” in a manner that frustrates the right to abortion. “This is the law of the land,” she said, “a constitutional right could simply be ignored.” She has hold of the problem: The law must find its ground in reasons that would be valid for everyone who would be bound by the laws.

No religious group has claimed an exemption from the laws of homicide on the strength of “beliefs” that the victims are not really human. That radical claim to “belief” has been made mainly by the religion of secularism in this country.

And what the other side cannot understand then is this: When we invoke rights of conscience in relation to abortion, we are not asking our “beliefs” to be honored. We are planting in the law the premise that the right to abortion has been founded in the most grievous errors of reason.


Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.

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Retrieved September 13, 2001 from http://ht.ly/1eFCe6

Coercing Conscience: Professional Duty or Moral Integrity

“Does private conscience trump professional duty?” asks an editorial in the Journal of Medical Ethics (LaFollette & LaFollette, 2007, p.249). The answer for any person of integrity is yes, it must. In this essay, I want to defend that answer, although it is not the one given by the editorial or by the National Association of Social Workers (NASW) (2010) in the recent statement from its Legal Defense Fund.

The issue of coercing the conscience of professionals in the health and helping professions has come to the fore in recent years as a result of the discovery, invention, or promulgation of new rights in matters of life and death, but also sex, marriage, and family. Behaviors that were illegal or socially stigmatized for millennia have been declared legal and become rights. This is not simply a victory for tolerance against the views and values of the majority of the population. It is a claim, supported by the force of law, for equal recognition and respect, subject to anti-discrimination measures equivalent to those that apply in the case of sex and race.

For more than two millennia, physicians have sworn by the Hippocratic Oath not to engage or collude in practices like abortion, euthanasia, or assisted suicide that involve the deliberate taking of human life. In the twentieth century, the ethic of aiming always to heal, never to harm came under intense pressure, in the U.S. from the eugenics movement that, in alliance with the birth control movement led by Margaret Sanger sought to reduce the Black population, and medical experiments involving African-American airmen. This movement was taken up enthusiastically by the Nazis in Germany. In the wake of the serious violations of the Hippocratic ethic by Nazi physicians, the World Medical Association’s (1948) Physician’s Oath affirmed “I will maintain the utmost respect for human life from the time of conception, even under threat.” The legally binding United Nations Declaration of Human Rights and the 1959 UN Declaration of the Rights of the Child affirm the rights of the child before as well as after birth (Joseph, 2009). These reaffirmations of universal rights of adults and children were a strong response to the eugenics movement in the U.S. and Germany and the horrors of World War II that discredited it.

With astonishing speed, all these and other legal protections have been swept away in either letter or spirit. UN officials have been attempting to pressure sovereign member states to establish abortion as a legal right (Tozzi, 2008). Far from resisting these threats, professional associations have revised the Hippocratic and other oaths to eliminate the prohibitions on killing—whether through abortion, euthanasia, or assisted suicide. They have transformed their own professional ethics from forbidding abortion and other life-terminating measures to all but making direct or indirect participation in them a requirement of professional practice.

Many, indeed most people in the United States, and especially orthodox and observant religious individuals and communities, continue to regard abortion (at least in most circumstances) as a grave evil, assisted suicide and euthanasia as morally impermissible, marriage as the proper context for sex and for raising the children that result from it, homosexuality as intrinsically disordered, and sexual behavior (of any kind) outside marriage as wrong. These are the areas of greatest division in society, the battlegrounds of the culture wars in which state and civil society, professionals and their clients, elites and masses, are most commonly and sharply divided.

New rights, established mainly by judicial rulings, make previously forbidden behaviors lawful, thereby expanding the options for those who wish to engage in them. But what is optional behavior for clients or patients rapidly becomes mandatory for professionals in the form of participation or collusion in the newly permitted behavior.

One response is to acknowledge and protect the consciences of those practitioners who regard their own involvement (participation, collusion) in such behaviors as gravely evil. This is what conscience exemptions attempt to do. Freedom of conscience in these matters is often a matter of religious liberty and so, it is argued, protected by the First Amendment. You may have a legal right to an abortion but I have the right not to assist you in having one. Of course, many physicians, nurses, and social workers participate directly or indirectly in providing abortions and do so with untroubled consciences. But what allowance should be made for those to whom the practice is abhorrent and who wish to continue to practice according to the Hippocratic Oath as understood for many centuries down until the last one?

The argument against such conscience exemptions for health care professionals (physicians, nurses, social workers) is typically framed as a conflict between an individual’s (or institution’s) right to refuse treatment and patients’ rights to treatment. The client’s right to treatment, to a full range of services, may be linked to professionals’ willingness to provide them, especially in rural areas. As the chair of the ethics committee of the American College of Obstetrics and Gynecology put it, the “reproductive health needs” of women should trump the moral qualms of doctors (Bioedge, 2009).

In this discourse, the personal is contrasted with the professional, the idea being that a professional has a duty to provide whatever services are legal and demanded by clients. In this argument the conscience of the professional is invariably given short shrift and subordinated to the supposed rights of the client to treatment. I say “supposed” because it is not clear how the legal right to have an abortion in itself gives anyone a legal right to demand its provision, let alone anyone else’s legal obligation to carry it out.

In part, the failure of professional organizations like NASW to protect the conscience rights of their members is justified by an implicit rejection or belittling of the very concept of conscience as traditionally understood. In its place we find a contrast of public (or professional) and personal “values.” Here values have no intrinsic authority or foundation beyond being the opinions or beliefs of those who hold them. If this is so, then why should the personal opinions (values) of a practitioner not be subordinated to those of the state that licenses and funds the professional or institution? To see the logic of this position and how it corrupts ethical discourse in the professions, I want briefly to examine the concept of conscience in the context of abortion. This is far from the only issue at stake, but if a case for conscience exemptions cannot be made in the case of abortion, it cannot be made anywhere.

Conscience
Opponents of conscience exemptions give little or no weight to the gravity of requiring someone to act against their conscience or leave their profession or be denied admission to it and hence its schools. But the choice to act against your conscience can never be right. It is to choose to do what you believe to be wrong, and in the case of abortion, gravely wrong. If you are a Christian, it means to put your immortal soul in jeopardy; if a Catholic Christian, it means to excommunicate yourself from your Church and its sacraments.

For the orthodox Christian, if not for the secularist professionals who demand this sacrifice of moral integrity, these are matters of ultimate seriousness. But with or without such a religious framework for your life, it can never be right intentionally to do what you yourself believe to be wrong. Of course, you have a duty to inform your conscience on the material facts and moral issues involved. As a Catholic social worker, nurse, or physician, you particularly have the obligation to inform yourself about the authoritative teaching of the Church on the matter at hand. But in the end, as the Church herself teaches, your obligation is to follow your own conscience, even if that conscience is uninformed or in error. In that case, the fault is prior to the act in question; it lies in the failure to inform yourself or the error in your reasoning, not the decision to follow your conscience.

To require people to act against their conscience, that is to do intentionally what they know or believe to be wrong, is to require them to sacrifice their integrity. It sets up an opposition between professional duty and moral integrity. But can it really be a professional duty to act without integrity? What kind of profession is it that requires personal dishonesty and hypocrisy from its practitioners? What kind of state requires such moral corruption of the professionals and institutions it licenses?

Some opponents of conscience exemptions respond by saying fine, if you cannot in conscience meet the expectations and duties of the profession, leave it or choose a different line of work. This may indeed be the only option facing conscientious individuals where no accommodation is made. Conscience also trumps career.

Here it is noteworthy how the language of the anti-exemptionists is marvelously euphemistic. Abortion is part of the “full range” of “reproductive health care” or of meeting “reproductive health needs,” although it is anti-reproductive, is not (except in rare cases) about health, it is seldom remotely definable as a medical need, and it terminates care (and life) for one of the two patients involved. (In obstetrics textbooks, traditionally, the physician is said to have two patients, the mother and her unborn baby.) Proponents of abortion say they are not pro-abortion, but “pro-choice,” as if the taking of innocent human life were up to the person responsible for the care of that life.

Such are the ways that professionals who participate in abortion justify to themselves their violation of the Hippocratic Oath as understood for millennia, as they substitute ending life for healing. The word “killing,” in this context, is objectionable to supporters of abortion rights because they deny that the child in the womb is a person or human being. But for the persons whose conscience is to be coerced in the absence of adequate legal protection, killing, the deliberate taking of innocent human life, is precisely the action in which they are being told to participate. Dismissing their moral objections as personal qualms reduces the seriousness of the matter to something like squeamishness at the sight of blood.

But the rationalization that defines the fetus as less than fully human—like the past rationalization that justified on similar grounds “research” by American healing professionals on African-American airmen in Tuskegee or on Jewish prisoners by Nazi physicians—is no more persuasive to conscientious objectors to abortion than those earlier cases of grave professional malfeasance. The view seems not more but less and less tenable in light of scientific advances since Roe v. Wade that show ever more clearly that the fetus is a separate being with his or her own DNA and own principle of existence. It seems a truth not easily evaded without a level of self-deception that is itself morally corrupt that a fetus is what we all once were and we are alive now in part because our mothers did not have us killed at that stage of our lives (George & Tollefsen, 2008).

To require such self-deception of members of a profession is already to build dishonesty into its core. Less tendentiously, the kind of case against conscience clauses made by NASW, Hilary Rodham Clinton, and Planned Parenthood (Clinton & Richards, 2008) corrupts by trivializing conscience itself and reducing it to “personal values,” something idiosyncratic that the physician, nurse, and social worker have to check at the door when professional duty calls. It reduces the first axiom of all ethics, to do good and avoid evil, to something dispensable in face of the requirements of one’s profession. To exclude those who want to maintain their moral integrity in face of strong pressures to surrender it is to do further serious moral damage to the profession itself, as well as to the individuals and institutions excluded.

Note that this argument against exclusion does not depend on the empirical reality that religious professionals and institutions—e.g., Catholic physicians, nurses, social workers, and pharmacists as well as hospitals and clinics—play an important role in the American health care system. Their exclusion would involve a tremendous loss of talent, of knowledge, skill, aptitude, and dedication for the healing professions. It would also substantially reduce health care services of all kinds and therefore the access of patients to all such services. The argument here, rather, is that the coercion of conscience of professional health care providers is morally corrupting for the profession and its practitioners.

There are of course less draconian policy options. One idea is that the conscientious objector may be excused from direct involvement in a legal and available procedure like abortion, but must in the event of such refusal, refer the patient to others who are willing to perform it.

The argument for mandatory referral may appear persuasive at first glance, when it is posed in terms of the patient’s right to information about her options. But a refusal to refer a client to an abortionist is not the same as blocking her access to information. The fact that the mandatory referral alternative can be advanced as a reasonable solution—a compromise that any reasonable practitioner should be willing to accept—is one indication of the moral obtuseness of the opponents of strong conscience exemptions. It is a failure to take seriously the conscience and moral integrity of practitioners.

In the case of the life issues, the matter at stake is the fundamental moral proscription on the intentional taking of innocent human life. This has been a basic principle of ethics for millennia, an exceptionless norm which binds the consciences of all in societies where conscience is acknowledged at all. To kill justly requires at least that the person not be innocent (as in capital punishment or enemy soldiers in a just war); or not a fully human person (as has been argued by defenders of racism, anti-semitism, sexism, and abortion—see Brennan, 2000); or that killing is not the intent but an unintended, secondary side effect (as with deaths of nearby civilians from the bombing of a military target).

Some actions that result in the death of the unborn baby are indeed justifiable on the last of these grounds, as when a normal, necessary treatment for the mother’s cancer results in the foreseen but unintended death of her child or when both mother and child face imminent death and only one can be saved. In such rare cases, the death is not a result of abortion, which is the directly intended ending of the baby’s life. By this principle, some treatments for the effects of ectopic pregnancy directly kill the fetus in order to treat the mother, but others treat the mother with the foreseen but unintended effect of the child’s death. These are the hard cases that challenge ethicists to make fine yet vital distinctions. They are not the norm for the more than a million abortions carried out each year in the U.S. alone.

Of course, moral relativists, situationists, consequentialists, and ethical emotivists may deny the existence or binding nature of such a proscription on the killing of innocents. The ethicist and philosopher of animal rights Peter Singer agrees that there is no moral difference between a fetus and a fully born infant but, in line with his denial of human exceptionalism as a species, sees the intentional killing of either as justifiable in certain circumstances, even to save a healthy animal.

Here I will not take up the objections to these stances in moral philosophy, but simply note that if it is wrong to kill a person, then it is also wrong to get someone else to do it. If it is, as I believe, a grave evil for me to murder my spouse, it is no less wrong to hire someone else to do it for me. If it is wrong for me to help you kill your inconveniently long-lived rich parents, it is also wrong for me to refer you to a professional hit-man.

Opponents of conscience clauses and exemptions sometimes pose the matter in terms of religious professionals’ wanting to impose their views on clients or patients. This is a serious misunderstanding. None of the case for conscience exemptions has anything to do with imposing my will on the client, as anti-exemptionists and militant secularists often claim. Patients and clients have an uncontested moral right to informed consent and informed refusal.

But this is not the issue. The client may find abortion morally permissible and it is certainly legally permissible in the United States. I respect her right under law to decide to have an abortion and will not condemn, moralize, or argue with her. My right not to participate in what I believe is grave wrongdoing does not imply or depend on a right to impose my belief on the client. “Conscientious objection," as Pellegrino (2008) says, “implies the physician’s right not to participate in what she thinks morally wrong, even if the patient demands it. It does not presume the right to impose her will or conception of the good on the patient” (p.299).

References

Bioedge. ( January 2, 2009). Last-minute conscience rule grants protection to abortion objectors. Retrieved June 10, 2010 from http://www.bioedge.org/index.php/bioethics_article/8433

Brennan, W. (2000). Dehumanizing the vulnerable: When word games cost lives. Toronto, ON: Life Cycle Books.

Clinton, H.R., & Richards, C. (2008, September 19). Blocking care for women. New York Times. Retrieved November 20, 2008 from http://www.nytimes.com/2008/09/19/opinion/19clinton.html?sq=hillary%20clinton%20op-ed%20abortion&st=cse&scp=1&pagewanted=print

George, R.P., & Tollefsen, C. (2008). Embryo: A defense of human life. New York: Doubleday.

Joseph, R. (2009). Human rights and the unborn child. Leiden/Boston: Martinus Nijhoff.

LaFollette, E., & LaFollette, H. (2007). Private conscience, public acts. Journal of Medical Ethics, 33, 249-254.

National Association of Social Workers. (May, 2010). Legal Defense Fund. Social workers and conscience clauses. Legal Issue of the Month. Retrieved June 10, 2010 from https://www.socialworkers.org/ldf/legal_issue/2010/201005.asp?back=yes

Pellegrino, E.D. (2008). The philosophy of medicine reborn : A Pellegrino reader. H. T. Engelhardt, Jr., & F. Jotterand (Eds.). Notre Dame, IN: University of Notre Dame Press.

Tozzi, P.A. (2008, November 28). Vatican tells United nations to quit pressuring countries to legalize abortion. LifeNews. Retrieved June 10, 2010 from http://www.lifenews.com/int1003.html

World Medical Association. (1948). Declaration of Geneva Physician's Oath. Retrieved June 16, 2010 from http://www.cirp.org/library/ethics/geneva/

The Philosophy of Medicine Reborn: A Pellegrino Reader (ND Studies in Medical Ethics)

Brennan, W. Dehumanizing the Vulnerable: When Word Games Take Lives

Brennan, W. John Paul II: Confronting the Language Empowering the Culture of Death

Embryo: A Defense of Human Life