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More than five months after President Barack Obama announced plans to rescind a new Bush-era rule that broadens provider conscience laws allowing healthcare providers to refuse to participate in care that conflicts with their beliefs, the U.S. Department of Health and Human Services is still reviewing hundreds of thousands of public comments it has received on the matter and weighing options.

The provider conscience regulations under consideration by HHS would overturn the broader regulations written by HHS officials under the Bush administration, which have not been enacted yet. “The timeline is not rapid,” HHS spokeswoman Jenny Backus says. “We’re in the midst of the evaluation process,” which could take “weeks and months.” Backus says the department received some 300,000 responses during a 30-day public comment period in March. The department could eventually decide to rescind the Bush rule, rewrite it, or keep it as it is, she says.

Federal provider conscience laws have been on the books since the 1970s. After abortion was legalized, Congress enacted three pieces of legislation to protect healthcare providers who refuse to be involved in procedures such as abortions and sterilizations because of moral or religious objections.

“It’s a longstanding tradition that if you believed there was something you couldn’t do because of your conscience, you could opt out,” says Douglas P. Olsen, RN, PhD, a nurse ethicist at the U.S. Department of Veteran’s Affairs’ National Center for Ethics in Health Care. That understanding included the idea that there would be someone else who could provide the care.

But the new regulation, put in place in the last month of the Bush administration, expands the laws to cover any healthcare employee, and seems to indicate that a provider can not only refuse care but refuse to give information about where a patient might receive that care. It also makes it easier to require hospitals, clinics, health plans, and other medical institutions to certify compliance with provider conscience rules or face losing federal funding.

Support and Opposition
The rule is opposed by many healthcare organizations, including the American Nurses Association, but many Catholic health organizations and anti-abortion groups strongly support it.

Supporters say the regulation strengthens laws already in place and provides clear penalties for organizations that discriminate against providers and other workers for following personal beliefs. Healthcare workers may not realize they have such rights, or face pressure from their bosses to be involved in procedures they morally oppose, they say.

In a letter to HHS in 2008, supporting the Bush regulation, William Cox, president and CEO of the Alliance of Catholic Health Care in California, cited attempts by lawmakers and professional organizations to require Catholic hospitals to perform or arrange for abortions and contraceptive services or risk losing government funds.

“These assaults on freedom of conscience not only run counter to our nation’s commitment to religious tolerance and liberty, they conclusively demonstrate the urgent need for the proposed regulation,” Cox wrote.

But critics worry the Bush rule could be broadly interpreted in such a way that pharmacists or even pharmacy clerks could refuse to sell contraceptives, and that nurses and other providers could refuse to give patients information about options for contraception, end-of-life care, or even vaccines and blood transfusions. Abortion service providers could be held liable for refusing to hire people who did not believe in abortion, they say.

Nursing Angle
The ANA code of ethics for nurses is clear that patients have the right to determine their care, says Mary Jean Schumann, RN, MSN, MBA, CPNP, ANA’s chief programs officer. “It’s not the nurse’s place to withhold information that would help patients make a decision,” she says. If nurses believe providing information would violate their religious or ethical beliefs, she says, “they have an obligation to find someone else who can provide that information in their place.”

If the rule is rescinded, laws will continue to protect people who do not wish to participate in certain procedures because of their religious or ethical beliefs, says Sister Carol Keehan, RN, MS, DC, president and chief executive officer of the Catholic Health Association of the United States, which supported the Bush regulation. “While [the Bush regulation] may be helpful, it is not as critical as the legislative pieces,” she says.

Keehan says she is encouraged by Obama’s pledge to support provider conscience laws in place before the Bush regulation. Backus, the HHS spokeswoman, echoes that commitment. “The president supports strong and clear conscience clause protections,” she says.

Though Backus cannot speculate whether or how the regulation might be rewritten, Olsen believes it would help clarify when providers may refuse care on moral or religious grounds. Current laws say the refusal must be a moral objection and not based on personal preference, convenience, or arbitrary reasons. That leaves a lot of wiggle room, he says.

If anything, he says, criteria for conscientious objection for healthcare providers should be stronger than merely disagreeing with the idea of a legal medical procedure.

“When you say you’re not going to do it, you’re saying society has made a moral error,” he says. “My inclination would be that conscientious objection is something that’s only invoked rarely and for very serious problems.”

Cathryn Domrose is a senior writer with Gannett Healthcare Group.

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To comment, e-mail editorNTL@gannetthg.com.


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