While executive orders and high-profile legislation garner the most media coverage, much of the change that comes with a new presidential administration happens in the individual departments staffed by new political appointees. The current administration has pushed far-reaching changes regarding the place of religious belief in the healthcare system through actions at the Health and Human Services Department. I’ve previously covered the administration’s decision in October 2017 to widen the scope of exemptions to the contraception mandate. More recently, NPR reported that the Department of Health and Human Services is opening a new Division of Conscience and Religious Freedom to defend health care workers who object to participating in medical care for patients because of their sincerely held religious beliefs. Notably, the establishment of the division also reverses an Obama-era rule barring “health care workers from refusing to treat transgender individuals or people who have had or are seeking abortions.”
In what kinds of situations would this division seek to aid healthcare workers in their conscientious objections? We won’t know for certain until the division begins to act, but several kinds of situations are likely. The NPR article provides a few examples. The division may defend “a nurse who didn’t want to provide post-operative care to a woman who had an abortion, a pediatrician who declined to see a child because his parents were lesbians,” or “a fertility doctor who didn’t want to provide services to a lesbian couple.” In addition, Louis Melling of the American Civil Liberties Union notes that the division may empower health care workers to refuse to provide services to transgender people.
As with many fraught moral situations, conscientious objections in health care pit competing concerns against each other and require a delicate moral balancing act. For one, these situations require balancing the individual rights of religious liberty with the social need to eliminate discrimination. This question is nothing new, as American society has arguably been wrestling with it since the country’s founding.
Discrimination occurs when an individual, group, policy, or law treats some people differently based on an irrelevant characteristic (such as race, religion, gender, or sexual orientation). Discrimination disrespects people by treating them as second-class citizens and directly harms them by making it more difficult to access goods and services. Religious liberty recognizes both the importance of religious beliefs to a person’s sense of self and happiness and the need to protect a person’s ability to believe and worship in the manner they see fit. These two competing concerns come into conflict when secular society deems a characteristic irrelevant that a religion does not. It may be recognized in a secular society that one’s sexual orientation is irrelevant to a person’s need to have access to medical care, while some medical workers have religious beliefs opposed to non-heterosexual behavior.
This conflict is not just ideological, but can also produce direct harms. If a medical worker’s opposition to non-heterosexual behavior causes them to refuse service (or provide substandard service) to a gay or lesbian patient, then that patient must find another doctor willing to provide the service. This takes time and effort, and some medical conditions can be urgent. As a brief from The Hastings Center (a bioethics think tank) puts it: “Conscientious objection in health care always affects someone else’s health or access to care because the refusal interrupts the delivery of health services.” The interruption of service may cause certain conditions to be treated too late, causing more pain and damage to these patients on top of the psychological harm of being treated differently based on their sexual orientation.
There is another necessary balancing act precipitated by the issue of conscientious objection: that between the personal beliefs of the individual medical workers and the social norms of the medical professions. Medical professionals owe patients specific and stringent obligations, in part, due to the special status we accord these professions in society. Not anyone can call himself a doctor. Doctors must meet strict education and licensing requirements. In turn, doctors can generally expect generous compensation. Professional organizations, like the American Medical Association, recognize this special status and seek to protect it by developing and promoting professional codes of ethics. These codes recognize that the special obligations of medical professionals are not compatible with just any old beliefs.
One way that medical ethics codes attempt to strike this balance is by drawing a distinction between emergency and non-emergency care. One principle in the American Medical Association’s Code of Ethics reads: “A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.” This principle attempts to recognize the freedom of the physician, while also recognizing the urgency of emergency medical care.
However, application of this principle, especially in relation to several other principles of the Code, is not easy. Another principle reads: “A physician shall support access to medical care for all people.” As was noted earlier, conscientious objection causes an interruption in medical care in basically all instances. Other circumstances will determine if this interruption is insignificant or causes a serious hindrance in a patient’s access to medical care. Consider if the doctor practices in a rural area and there are not many (or any) reliable alternative sources of care. If this doctor refuses to treat a gay or lesbian patient, his actions may be construed as contradicting the principle of supporting access for all people.
Suggestions have been made to help finesse these balances. Preparation and foreknowledge can help prevent painful conflicts from happening in the moment. Medical workers with specific religious objections should inform their colleagues and employers ahead of time about their objections. Medical institutions with religious affiliations should make clear to prospective patients what types of care they will refuse to give. Furthermore, institutions should have well-defined policies regarding the transfer of patients in situations where medical workers refuse certain services to them.
Resolving these issues will be difficult, and not everyone will agree. However, confusion over how these conflicts are to be resolved will compound the harms. Medical institutions and government agencies need to develop clear policies and guidelines regarding conscientious objections.