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Should Health-Care Providers be Allowed Off the Hook on Providing Birth Control?

HEALTH-CARE POLITICS--On Thursday, the Trump administration published a new set of rules, laying out its plan to interpret broadly laws that protect health-care workers' and organizations' right to opt out on moral grounds of "assisting" in certain procedures, such as abortion, sterilization, and assisted suicide.

Scheduling an abortion and caring for a patient after an abortion, for example, both count as "assisting" the procedure, the new regulations say. If receptionists and nurses decline to do so, then their employers have to accommodate them, or risk the government terminating their funding. 

The administration says the rules provide needed protection for conscientious objectors. "This rule ensures that health-care entities and professionals won't be bullied out of the health-care field because they decline to participate in actions that violate their conscience, including the taking of human life," said Roger Severino, director of the Department of Health and Human Services Office of Civil Rights, which will enforce the rules.

The regulations have already drawn opposition and dismay from women's groups and those working on lesbian, gay, bisexual, and transgender rights. "This rule allows anyone from a doctor to a receptionist to entities like hospitals and pharmacies to deny a patient critical—and sometimes lifesaving—care," Fatima Goss Graves, president of the National Women's Law Center, said in a statement. "Personal beliefs should never determine the care a patient receives."

The controversy gets at a deep ethical problem: How should care providers balance health workers' and patients' rights when they're in conflict? In the days before the rule's publication, I spoke with ethicists about what ideas they have for striking the right balance and what they think of the Trump administration's approach.

SANDRA H. JOHNSON, PROFESSOR EMERITA OF LAW AND HEALTH CARE ETHICS, ST. LOUIS UNIVERSITY

How do ethicists think about patients' right to care versus health-care workers' right to follow their consciences?

Ethicists are really in conflict about how to look at this. Some argue that it's the patient's bodily integrity and moral choices that are the focus of health care, and if a health-care professional or a health-care organization can't put those values first, they shouldn't be in the field.

Others argue that health-care professionals are moral agents themselves. It's unethical to take another human being and say: "You must do something that you find intrinsically immoral." And by saying those kinds of people can't be in profession, you're not having that ethical voice in the profession.

I feel I'm in the middle. I think conflicts of conscience are unavoidable in medical care between patients and doctors. They are going to happen. We [should] try to mediate the conflicts, try to end up somewhere that balances.

In your view, what are some good ways to compromise between these two sides?

Advance notice to patients. Referrals. At least giving patients information on where they can go next. It really requires some action on the part of health-care providers, organizations, and professionals to assist the patient.

It gets more complicated, of course, when there's only one hospital in the area. I haven't worked in that area enough to form an opinion about what ought to be done in that case.

You know, there's a social relationship where these medical treatments have been considered legal and that's why I put my thumb on the scale of compromise rather than protecting the individual providers in saying no to everything.

ROBERT F. CARD, PROFESSOR OF PHILOSOPHY, OSWEGO STATE UNIVERSITY OF NEW YORK

You've come up with this idea of creating a system where, if you're a health-care worker who objects to certain procedures, you have to argue your case before a panel, and then post your objections in a public database.

This could be viewed as analogous to, obviously, conscientious objector status in the military.

It would be a committee with medical professionals, ethicists, and community members. We could imagine this committee having a really thin screen to look for things like public commitment to the values. Is it the case that providers lodge quote-unquote "conscientious refusals" when really they're masking other motives, whether they be discriminatory or sexist or racist or financial? Or other kinds of political motives, as opposed to a deep-seated, religious, moral objection to the practice itself?

What if it turns out my doctor is a conscientious objector to a service I want, like abortion or sterilization? What should happen next?

There has to be an effective referral.

What if my doctor also believes that referring for these services is immoral?

Look, you're part of a profession that offers a lot of different services and this was known and this is a voluntary choice. So there's all these factors that suggest, in my mind, there's a prima facie obligation that the provider has to provide the service.

So, the cost of earning that accommodation is, at the very least, giving an effective referral.

Your database also means that, as a patient, I could look up beforehand who objects to the procedure I want and avoid that provider.

That's right.

BARBARA GOLDER, EDITOR-IN-CHIEF OF LINACRE QUARTERLY, THE OFFICIAL JOURNAL OF THE CATHOLIC MEDICAL ASSOCIATION

How do you think about patients' rights versus providers' rights?

Patients have the right to access to care. They don't necessarily have the right to access to care with any given provider. So, there's a difference between saying: "I, Physician X, do not provide tubal ligations" and saying: "No, nobody can have access to tubal ligations." I think there's got to be responsibility on both sides.

People who are going to be in positions of interface have to understand that this is going to happen and have to understand how to respect themselves and others, and how to extract themselves from the situation early on, not late in the game. Employers have to figure out how they're going to support that kind of environment.

Say someone comes to a medical office and makes an appointment, saying: "I want a referral for an abortion." And the office has people who provide abortions and some people who won't. Let's say we have a receptionist who feels that she can't even take that call. Well, if she can't take that call, in that kind of environment, then she may not be qualified for that position, not because it's discriminating against her conscience, but because it's an essential part of her job that she can't do because of her conscience.

I think the tricky question is: What do you do if the only other hospital in the area is Catholic? I don't know.

Groups that provide access to this care—for example, sterilization—elsewhere, can [come in and] provide care and access and transportation to those women who want that. I realize that's cumbersome, but it is an answer. I think we have the opportunity to think a little bit out of the box here.

Someone else I talked to suggested a public database where doctors would post the procedures they're morally opposed to. Patients can then search for willing providers for the service they need.

I think something like that is a good piece of this. That puts the onus on the patient to say: I have go find someone who offers [the service I want].

How about having doctors refer their patients to someone else, as another possible compromise?

Here is a problem with that. There are circumstances in which, particularly under Catholic thought, a physician can't refer for the purpose of facilitating a patient's getting a procedure that is, under Catholic teaching, immoral. It becomes cooperation with evil.

Now, there are ways around that, but it requires the cooperation of institutions. Let's say a patient in a hospital [requests] physician assisted suicide [and the doctor objects]. The institution should then say: "We will step in and appoint somebody else."

The United States already has laws on the books protecting health-care workers' and organizations' religious and moral freedoms. Do you think they were working well before?

No, I don't think they were. When you look at how the Little Sisters of the Poor were treated and the repeated attempts to go back and force them to provide contraception, I don't think you can say that's doing a good job, particularly when we have this health-care system that, in theory, is providing access to all this care. We have Planned Parenthood providing contraceptive care. It's not like it's not out there.

The interviews above have been edited for length and clarity. 

(Francie Diep is a staff writer at Pacific Standard, where she specializes in health and drug policy and the intersections of culture and science. Previously, she covered science, health, and science policy for Scientific American, Popular Science, and Smithsonian. This piece was posted first at PSMag.com)

-cw