Submitted to a Candid World

Recently, we learned that Secretary of Health and Human Services has enrolled the “Provider Conscience Regulation” – labeling as “discrimination” & anti-”free speech” any requirement that doctors listen to their patients perform abortions – in the Federal Register, leaving it open for public comment for thirty days. That gives us until September 20th, to be safe.

I urge everyone to submit a comment. It needn’t be legal (mine isn’t); it must only be cogent and persuasive. I doubt Leavitt will care, but please, if “discrimination” is to have any meaning, and if the right to choose is to have any substance, submit a comment by e-mailing consciencecomment@hhs.gov before September 20th.

To read up on this issue, please see a good friend and an honorable physician, PalMD of Denialism Blog. For a thorough run-through of the proposed regulation itself, see my longtime friend Steve. For suggestions for immediate action – like writing your representatives – see our newer-but-no-less-valued friend Didion’s Mommy. You may also find it helpful to read the regulation. But for God’s sake, don’t do nothing!

The comment I intend to submit follows below the line.

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The proposed “Physician Conscience Regulation” (PCR) attempts to activate and strictly enforce dormant federal law requiring that qualifying healthcare providers ignore religious objections to identified medical procedures (abortion, sterilization, etc.) when hiring, assessing, and promoting physicians. PCR § 88.4(d)-(e). In short, a physician’s refusal on religious grounds to perform specific procedures may not be held against them. While perhaps to some the regulation’s goals are laudable, by elevating the physician’s conscience above the patient’s health, the PCR evinces a shortsightedness and ignorance of consequences that ought to doom it to failure.

A. The PCR Ignores Key HHS Constituencies, Especially Healthcare Patients, Elevating the Conscience of the Doctor over the Health & Well-Being of the Patient

By allowing doctors to legally, and without professional repercussions, deny specific health care (notably, abortions) to patients, the obvious impact of the PCR is that some patients will be unable to receive the care they request of their physicians. While the regulation defines its purported benefits in terms of a “more diverse and inclusive workforce” where “individuals from many different faiths, cultures, and philosophical backgrounds are encouraged to participate” (page 23), the regulation at no point assesses its likely impact on patients, save to deflect, without analysis, concern for the patient’s rights. Where this point emerges, the regulation addresses the concern only by changing the subject: “this regulation does not limit patient access to health care, but rather protects any individual health care provider…” (page 11). To state that the regulation will have no impact on patients does not make it so. Denial is not proof. Some analysis is needed. By failing to analyze the impact on patient’s rights, the PCR is arbitrary, capricious, and elevates without explanation one HHS constituency above another.

Poignantly, the regulation forgives physician refusal to perform identified medical procedures in all cases: no attempt is made to address the possibility that a physician’s refusal may, at times, go against the patient’s best interest. Should a patient present requiring an abortion to maintain bodily integrity, the PCR would hold a physician harmless, and indeed justified, in refusing to place the patient’s health as their foremost concern. The PCR has the perverse effect of condoning violation of the Hippocratic Oath’s foremost command: that the health of the patient come first. As one concerned physician has stated, the PCR “would essentially allow doctors to ignore the standard of care set by their professional organizations.” Federal law would not save a doctor from lawsuits ensuing from care that fails to meet the legal standard, regardless of religion. The PCR’s implicit encouragement that doctors tolerate risk when ideology asks it of them is nonsensical.

Put simply, a patient’s needs do not change when her physician’s religion does.

Since the PCR ignores the plight of the patients of affected physicians, its enactment should at least be postponed for analysis of these effects. At most, the PCR should be wholly abandoned.

B. The PCR Ignores the Likely Consequences of its Enactment, Including the Possibility that, in the Aggregate, it Could Constitute an “Undue Burden” on the Constitutionally Protected Right to Choose

As explained above, even in single interactions, patients’ health may suffer under the PCR. However, the true evil of the PCR occurs in the aggregate. Many Americans are served by only one physician. To allow physicians to deny required or preferred medical care amounts to a legalized withdrawal of reproductive healthcare options from, perhaps, thousands of Americans.

Secretary Leavitt, on his blog, acknowledges this valid concern, but argues against it by stating that this scenario has not yet come to pass. The past, however, is not the concern when evaluating a regulation that affects the future. He apologizes for any likely aggregated effects by stating that, if women could not obtain abortions because of “physician conscience,” it would be a “powerful social statement.” The HHS need not concern itself with making “social statements.” Its concern is for the well-being of American patients and the effectiveness of American physicians; it is not charged with scoring political or ideological points, especially not at the expense of the well-being of American women. Secretary Leavitt ought to be roundly condemned for so plainly placing ideology over medicine.

Since the PCR, in the aggregate, may make abortions unobtainable for some American women, it risks placing an illegal “undue burden” on American women and their constitutional exercise of the right to choose. Planned Parenthood v. Casey, 505 U.S. 833 (1992). It is undebatable that frustrating the right to choose by making its exercise impractical is an “undue burden” on the right; the need to make a social statement does not excuse this transgression of legal limits. At the least, the PCR’s Executive Order 12,866 impact analysis should consider the legal fees likely to flow from litigation over the PCR’s undenied effects.

C. Because the PCR Fails to Balance a Patient’s Needs with a Physician’s “Right to Conscience,” it Must be Modified or Abandoned

Perhaps the PCR raises valid concerns. However, because it fails to strike a proper balance between a patient’s needs for healthcare and bodily integrity and the right to “conscience,” it must at the least be modified and subjected to a balancing of the necessary interests.