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Religion & Liberty: Volume 33, Number 2

Medical conscience rights: the next civil rights struggle

Something authoritarian this way comes. Powerful forces are striving to impose a secular ethic on the entire medical professional which – in the name of “patients’ rights” – seeks to compel doctors, nurses, pharmacists, and other medical professionals to violate their religious beliefs on issues like abortion. At stake is the right of doctors to practice medicine consistent with the Hippocratic Oath, and specifically of Roman Catholic hospitals and other religious medical institutions to run their institutions in conformity with their faith’s moral teachings. 

For most of our history, healthcare was not culturally controversial. In recent decades, that consensus shattered. Substantial disagreement now exists about the meaning of “do no harm.”

This rending began in earnest after Roe v Wade invented abortion as a constitutional right. Roe tore the moral fabric of the country apart. In the years since Roe, the country has continued to splinter on the morality of healthcare. Many now see healthcare not only as about curing sickness, but also as a technocratic endeavor extending well beyond maintaining physical health. It now includes helping patients attain life satisfaction and personal fulfillment. 

Forcing medical professionals to choose between living out their religious beliefs or pursuing their careers would harm the healthcare system and make a toxic prescription for our divided country.

These differences have exacerbated our cultural discord over what constitutes “harm” in the medical context. For example, is it a harmful to block the puberty of a child diagnosed with gender dysphoria to prevent the development of secondary sexual characteristics – or, is it a harm not to do so, because a later gender transition would become more difficult? 

The same intractability exists regarding the contentious issue of physician-assisted suicide. Opponents see assisted suicide as the ultimate harm to a patient, because it intends to cause death; moreover, is explicitly proscribed in the Hippocratic Oath. But supporters of what is euphemistically called “aid in dying” insist that the real harm comes from denying assisted suicide, because doing so “forces” a suffering patient to remain alive. 

These dichotomous views are incapable of reconciliation. Until recently, this growing cultural divide was successfully bridged by a truce: States that permit assisted suicide did not force doctors to participate in them against their will. The same arrangement existed around abortion.

The uneasy peace that has allowed these radical ethical differences to coexist has been shattered. The most prominent and influential names in bioethics now urge that doctors, nurses, pharmacists, and others be required to provide patients with any legally available medical procedure they seek – even when the provider morally objects – so long as the request will provide the patient with his or her desired medical benefit. 

According to this view, destroying medical conscience is a matter of supporting “patients’ rights.” The bioethicist Ezekiel Emanuel – a prime architect of the Affordable Care Act and a prominent adviser to Presidents Barack Obama and Joe Biden – put it this way in a 2017 column titled “Physicians, Not Conscripts – Conscientious Objection in Health Care,” co-authored with bioethicist Ronit Y. Stahl in the New England Journal of Medicine:

Making the patient paramount means offering and providing accepted medical interventions in accordance with patients’ reasoned decisions. Thus, a health care professional cannot deny patients access to medications for mental health conditions, sexual dysfunction, or contraception on the basis of their conscience, since these drugs are professionally accepted as appropriate medical interventions. 

This would mean that a faithful Catholic doctor who opposes contraception would have to prescribe birth control – even if she informed her patients before being retained that she practices medicine according to her Church’s moral teachings. Emanuel and Stahl also make it explicit that pro-life OB/GYNs should be required to participate or be complicit in a non-therapeutic abortion, because “abortion is politically and culturally contested [but] it is not medically controversial. It is a standard obstetrical practice.” 

The authors would drive dissenting doctors out of medicine:

Health care professionals who are unwilling to accept these limits have two choices: select an area of medicine, such as radiology, that will not put them in situations that conflict with their personal morality or, if there is no such area, leave the profession.  

Similar articles have been published in such notable medical and bioethical professional publications as the Journal of the American Medical Association and the Journal of Medical Ethics. The point of such advocacy is not just to coerce doctors to adopt secular values in their professional lives but to impose a uniform ideology throughout the healthcare system.

The campaign to destroy medical conscience has gone well beyond the debate stage. The ACLU and others have brought lawsuits to force compliance with the new medical orthodoxy. For example, Catholic hospitals have been sued – so far, without success – for refusing to allow abortions and sterilizations on their premises. Catholic institutions have been targeted for refusing to permit hysterectomies as part of transgender sex transition procedures. 

One of these cases, Minton v Dignity Health, shattered the religious freedom barrier when the California Court of Appeals allowed the suit to proceed. There were two bases for Dignity Health’s refusal to permit the transgender operation. First, the surgery would have removed a patient’s healthy uterus. Under Catholic healthcare directives, a functioning organ can only be removed to treat or prevent pathologies. Second, the surgery would have sterilized the patient. Under Catholic teaching, medical acts resulting in sterilization can only be performed to treat serious conditions.

Note that these Catholic directives apply universally and do not invidiously target particular patients. In other words, it is the purpose of the procedure that is objectionable. Thus, a woman would be denied a hysterectomy at Dignity Health that removed a healthy uterus for the purpose of not having children. But if she had uterine cancer, the hospital would perform the surgery even though it would cause her sterilization as a secondary effect. At the same time, a transgender patient with a broken arm i would receive the same care as every other patient; indeed, it would violate Catholic Healthcare Directives to do otherwise.

But none of that mattered to the Court of Appeals, which ruled that the refusal to remove the transgender person’s uterus violated California’s anti-discrimination law – and freedom of religion offered no defense. If the case goes to trial – the California Supreme Court refused to take the case and the U.S. Supreme Court has not ruled on a petition to grant a hearing – and if large damages are assessed by the jury, legal attacks against Catholic hospitals will proliferate. 

Meanwhile, medical conscience is also under attack at the federal level. In 2016, the Obama administration issued a rule that interpreted the Affordable Care Act’s nondiscrimination provision on the basis of sex as applying to gender identity – meaning that it would require doctors and hospitals to provide gender transition surgeries. Notably, there was no religious exemption to the rule.

In the years since, several courts have enjoined its enforcement under the Religious Freedom Restoration Act (RFRA). But a judgment enjoining enforcement on that basis has just been appealed. The issue may well be finally decided by the Supreme Court.

Of course, that assumes that RFRA remains relevant to the dispute. It could become moot if the “Equality Act” becomes law. In the name of equal rights, the act would destroy medical conscience rights by explicitly removing existing protections for pro-life doctors and nurses on the grounds that their views constitute discrimination against women based on pregnancy. The Charlotte Lozier Institute’s associate scholar Richard Doerflinger explained:

The Equality Act’s new freestanding ban on pregnancy discrimination … adds the new requirement for women to receive “treatment” for pregnancy that is as “favorable” as treatment for any other “physical condition” … And it negates the existing religious freedom law that allows believers to seek an exemption from such requirements based on sincere religious beliefs such as respect for human life.

President Biden has promised to sign the bill if it reaches his desk. 

Even worse for pro-life or religious medical professionals, the bill would gut RFRA as a defense against any acts the bill deems discriminatory. Among other wrongs, this could force Catholic hospitals to perform sterilizations, abortions, and transgender surgeries.

Do we really want to require doctors, nurses, pharmacists, and others to participate in such acts if they consider them to be immoral and sinful? Should healthcare policy declare lived faith to be non grata in the medical professions? Are we willing to see the free exercise clause of the First Amendment, and religious protections in federal law, so gutted that they no longer protect freedom of conscience in healthcare? For those seeking to impose a uniform ideology of healthcare, the answer clearly is yes.

But such a course could have a dramatic and deleterious practical impact. If we force healthcare professionals to violate their moral beliefs, we could see a mass exodus from the medical professions of our most talented doctors and nurses. Meanwhile, gifted young people may avoid the field altogether, knowing that to pursue a career in healthcare would require them to leave their moral beliefs at home. Alas, I suspect that is precisely what medical conscience opponents want.

Opponents of medical conscience claim that granting conscience rights is a means of authorizing discrimination against women and sexual minorities by stealth. But the protection is not aimed at discriminating against patients but at protecting medical professionals from being compelled to participate in procedures that violate their most deeply held moral beliefs. America has always recognized that religious liberty is a definitive civil rights issue, too.

This country protects the conscience rights of individuals who hold the most heterodox viewpoints. We even permit religious conscientious objectors to legally refuse military service in a time of war. If this country legally allows that extent of disagreement when the country’s very survival is at stake, surely federal and state law can accommodate healthcare professionals who find taking lives morally offensive, particularly when there are others willing to provide the requested procedure.

Some will worry that this protection could result in patients being abandoned. But medical conscience protections are generally – and properly – restricted to what is sometimes called “elective” treatment. So-called non-elective interventions (that is emergency care and life-sustaining treatment) are specifically removed from these protections. The International Declaration in Support of Conscientious Objection in Healthcare puts it succinctly:

In health care, conscience plays an essential role in the professional judgment – often subtle and delicate – that practitioners must exercise in their daily work. If health care workers are not to be reduced to mere functionaries (of the state, of the patient, of the legal system), they must be free to exercise their professional judgment and to allow their consciences to inform that judgment. This freedom of professional judgment informed by conscience must translate into the freedom not to be involved in certain activities or practices to which there is a conscientious objection. 

Who would want to force someone to perform medical procedures under duress? Who would want to deny practicing Christians and other conscientious people the right to engage in the healing arts? This issue is really about one side of our culture wars asserting hegemony over a vital sector of society.

They might very well prevail. But at what cost? Forcing medical professionals to choose between living out their religious beliefs or pursuing their careers would harm the healthcare system and make a toxic prescription for our divided country.

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Award-winning author Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism and the author of The War on Humans.