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Doctor-ethicist sees ongoing efforts to weaken conscience protections
Catholic News Service

NEW ORLEANS — Fine print contained in the Affordable Care Act has weakened conscience protections for physicians who oppose abortion, sterilization or other medical practices on religious or moral grounds, a doctor and ethicist told the American Academy of Fertility Care Professionals.

Dr. John Brehany, executive director and ethicist of the Catholic Medical Association, said with the passage of the new health care law, commonly called Obamacare, "the federal government is posing real threats to faithful health care professionals."

"While Obamacare itself does have a couple of conscience-protection provisions built in, the fact is, if you look at the big picture, which are the old federal laws and what was achieved from 1973 to 2004, we are now missing some important protections, and we are now vague on how these old laws will carry forward into the future," Brehany said Aug. 10 during told the academy's annual gathering in New Orleans.

One such old law is the Church amendment of 1973, for example, to shield individual and institutional health care providers from forced involvement in abortion or sterilization.

"While there are those old federal protections that go way back, Obamacare actually muddies the picture," he said.

Brehany said in December 2008, just before President George W. Bush left office, the Department of Health and Human Services wrote new regulations to implement existing federal laws "to give teeth and some guidance and enforcement provisions that had never been done before." The regulations required compliance by professional medical societies, Brehany said.

"One of the first things the Obama administration said was 'we're rescinding that,'" Brehany said. "It took them two years to do it, and they just said they were modifying it. In between, they passed Obamacare in March 2010, and they didn't clarify what they were doing until February 2011."

On Feb. 18, 2011, the Obama administration announced a partial rescission of the Bush administration's regulation protecting the conscience rights of health care workers. HHS said parts of the 2008 regulation had "caused confusion and could be taken as overly broad."

The 41-page final rule issued that day summarized and responded to the major themes of the more than 300,000 comments received by HHS during a lengthy public-comment period on its proposed rescission.

More than 97,000 individuals and organizations supported the move to rescind, with most saying the 2008 rule "unacceptably impacted patient rights and restricted access to health care and conflicted with federal law, state law and other guidelines addressing informed consent," HHS said.

Nearly 187,000 comments opposed the proposal, expressing the conviction that "health care workers should not be required to perform procedures that violate their religious or moral convictions" or that rescission "would violate the First Amendment religious freedom rights of providers or the tenets or the Hippocratic Oath, and would impact the ethical integrity of the medical profession."

"While the department carefully considered these comments, we do not specifically address them because this partial rescission does not alter or affect the existing federal health care provider conscience protections," the HHS final rule said.

Under the previous rules, physicians had been protected from discrimination if they had moral or religious objections to participating in "several kinds of health care," such as training in abortion procedures, performing abortions or surgical sterilizations or prescribing artificial contraceptives.

According to Brehany, the new HHS rules indicate there is full conscience protection only for medical professionals who "object to performing abortion -- period. That's it. It doesn't say, facilitating, helping, paying for. It says performing abortions, period. This is a strategic attack on religious freedom."

"The point is, if you look at trends in federal law and this administration, they are weakening or certainly muddying the waters of having clear and certain protections for rights of conscience," Brehany said.

Other threats to conscience protection for physicians have come from doctors themselves, he said. Dr. Julie Cantor, writing in the New England Journal of Medicine in 2009, said "conscience is a burden that belongs to the individual professional; patients should not have to shoulder it."

Cantor wrote that because patients rely on doctors for their health care, they should expect them to be "neutral arbiters."

"Federal laws may make room for the rights of conscience, but health care providers ... should cast off the cloak of conscience when patients' needs demand it," Cantor wrote.

Dr. R. Alta Charo of the University of Wisconsin-Madison suggested in 2007 that medical societies could deal with "refusing physicians" by enforcing their own ethical standards and, "in this way, lay the groundwork both for individual health care providers to see their way clear to serving patients even in ways that violate their own preferences and beliefs as well as to assist courts in determining the customary and standard practice in medical malpractice cases based on refusal of service or medical abandonment."

Brehany said the recent delays in enforcing some provisions of Obamacare have created a cloud over the nation's health care system.

"Some have suggested that the plan all along was that Obamacare would fail and there would be such a mess -- who's paying the hospital, who's paying the doctor, what's a patient entitled to? -- that only the federal government could quickly step in and say, 'Here's the rules,'" Brehany said.

"This has created incredible confusion, incredible expense and a lot of anxiety, and that's a very bad thing, and it's wrong," he said.

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