AMA Journal of Ethics®

Illuminating the art of medicine

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AMA Journal of Ethics®

Illuminating the art of medicine

Virtual Mentor. March 2013, Volume 15, Number 3: 226-235.

Policy Forum

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Institutional Conscience and Access to Services: Can We Have Both?

Qualifying conscience protections for institutions with requirements that they minimize hardship caused to the patient would prevent religious institutions from acting as a choke point on the path to services.

Cameron Flynn, JD, and Robin Fretwell Wilson, JD

It appears, at times, that health care and religion do not mix. Consider the sterilization and contraception coverage mandate under the Patient Protection and Affordable Care Act. The mandate requires nearly all employers and health insurers to cover as “essential health care services” certain sterilization procedures and contraceptives, including emergency contraceptives [1]. Members of the Catholic, evangelical Christian, Mennonite, and Muslim faith communities [2] say that the mandate places them “in the untenable position of having to choose between violating the law and violating their consciences” [3].

The Obama administration made a series of attempts to meet this objection. Speaking for the White House, Domestic Policy Director Cecilia Munoz emphasized the administration’s commitment to “both respecting religious beliefs and increasing access to important preventive services” [4]. The administration promised to delay enforcement of the mandate until at least August 1, 2013 [5-7], but critics dismissed the concession as “kicking the can down the road” [8]. The administration then proffered its controversial accommodation requiring insurers rather than objecting employers “to reach out and offer the woman contraceptive care free of charge without co-pays, without hassle” [9]. Objectors also found this accommodation “unacceptable,” saying it hides a “grave violation” of religious liberty behind a “cheap accounting trick” [10].

The Obama administration followed through on its offer to accommodate objectors with proposed regulations that provide enrollees contraceptive coverage with no copays and reimburse insurers for costs of contraceptive coverage through credits on fees the insurers owe the government [11]; objectors covered by the regulation would not have to pay for the objected service or notify enrollees of it [11]. These proposed changes did not satisfy religious objectors, who still oppose the mandate [12, 13].

Objecting religious organizations—representing a host of faith groups [14]—have filed dozens of lawsuits opposing the mandate on religious liberty grounds [15]. These suits are slowly working their way through the courts [15]. On November 26, 2012, the U.S. Supreme Court directed a federal court of appeals to reconsider its decision in one lawsuit over the mandate in light of the Supreme Court’s June 2012 decision upholding the constitutionality of portions of the federal health care reform law [16].

The collisions between faith and the demands of medical practice take a number of forms. They are often most in tension when institutions assert conscience objections. Nonetheless, policy makers have a number of options that allow them to respect moral and religious objections while preserving access to needed medical services.

Burgeoning Collisions between Conscience and Medical Access

Reaction to this mandate is not the only collision that religious objectors identify between the demands of faith and the need for services. More than a dozen nurses from two institutions filed suit after being punished, they say, for refusing on religious grounds to assist with or train for abortions—a procedure the nurses see as ending a life [17-19]. The nurses alleged that they were threatened with professional discipline and termination if they did not assist with the contested service despite federal conscience protections in place since Roe v. Wade [17, 20, 21]. In both suits, the nurses ultimately received the protection they were promised under federal and state laws [17-19]. Like these nurses, both facilities and individuals have strenuously opposed duties to dispense emergency contraceptives that objectors believe are “abortion-inducing drugs” [22, 23].

Religious objections are hardly limited to contraceptives and abortion, however. Clinicians have objected to an expanding number of practices, ranging from circumcising babies to participating in physician-assisted suicide and providing assisted reproduction services [24]. In any of these contexts, two very different parties may be asserting the need for accommodation of their religious beliefs: individual clinicians and health care institutions.

Institutions Have a Conscience

Abortion conscience clauses, dating back to Roe v. Wade [21] in 1973, have always insulated both individuals and institutions. While it is easy to understand how an individual may hold a religious or moral belief that can be in tension with the demands of the law, some find it difficult to fathom how an institution can have a moral conscience or “belief.” Some commentators argue that “[a] vibrant liberty of conscience requires morally distinct institutions, not just morally autonomous individuals,” and that, therefore, the state should recognize that institutions also have a conscience claim [25].

In two recent decisions, the U.S. Supreme Court has extended protections normally associated with individuals, like free speech and free exercise of religion, to institutions [26, 27]. In Hosanna Tabor Evangelical Lutheran Church and School v. EEOC, for example, the U.S. Supreme Court concluded that “the Free Exercise Clause...protects a religious group’s right to shape its own faith and mission through its appointment” of ministers [27]. It noted that “[a]pplying the protection of the First Amendment to roles of religious leadership, worship, ritual, and expression focuses on the objective functions that are important for the autonomy of any religious group, regardless of its beliefs” [28]. Although these decisions are controversial, they show a great respect for institutions’ rights and interests.

While protections for individuals and institutions both receive support in the law, protecting each requires markedly different tradeoffs by policy makers, as we explain next.

Balancing Conscience Protections with Access

When deciding to accommodate a conscience-based objection to providing a service that is legally available, legislators and agencies have to balance at least two equally compelling values: respect for conscience and access to needed services. Some assert a third value, patient choice. Patients only have a meaningful choice, patient-choice advocates say, when institutions can choose not to provide a specific contested service. Just think of the patient who seeks a clinician with common values—for instance a pro-life reproductive specialist [29]. While policy makers may want to foster diversity among clinicians, institutional providers who cannot—consistent with their faith commitments—provide services pose a special challenge because institutions control large swaths of the market. As we argue below, respect for conscience should never allow a provider to be in a “blocking position,” which is far more likely to be the case with a large regional hospital than with an individual specialist.

An absolute, unfettered right to refuse to provide a contested service could significantly threaten the public’s ability to receive services—especially if few or no others were willing to perform it [30, 31]. An unqualified institutional accommodation will almost always wipe out access for huge numbers of people because institutions serve huge numbers of people. Precisely because Catholic hospitals across the country account for 17 percent for all hospital admissions [32], many are rightly concerned when Catholic hospitals receive protection against dispensing emergency contraceptives [33]. Compounding this, many hospitals seeking religious protections possess monopoly power in their relevant communities. Indeed, Catholic hospitals are the sole hospital in 91 counties in the U.S. [34], a number that will surely grow as Catholic hospitals continue to acquire and merge with non-Catholic health systems [35].

Given all of these facts, one might believe that legislators would be loath to give institutional protections rather than individual conscience protections. Yet institutional accommodations may be easier to secure than individual accommodations because hospitals are powerful organizations that can lobby for their interests. Moreover, the market power that raises the specter of reduced access also favors the granting of institutional protections. Why? Many religious leaders have said they will close their institutions before violating their religious commitments. On the heels of the mandate, for instance, Cardinal Francis George, the Archbishop of Chicago noted that the Archdiocese’s directory of holdings contains “a complete list of Catholic hospitals and health care institutions in Cook and Lake counties,” and ominously warned, “two Lents from now, unless something changes, that page will be blank” [36].

Policy makers should take seriously institutions’ threats of closing, which elsewhere we have described as the “nuclear option” [23]. In other contexts, religious objectors have acted on their promises to close. For example, Catholic Charities of Boston closed its adoption services after 103 years of placing kids for adoption when an exception to rules requiring them to place children with same-sex couples was not forthcoming [37, 38]. In Washington, D.C., Catholic Charities discontinued insurance coverage for spouses of new employees when faced with laws that would require them to cover spouses in same-sex marriages in violation of their religious beliefs [39]. Objectors are taking the nuclear option elsewhere, too [40-42].

Of course, threats of closure should not be the end of the analysis. Legislators and regulatory bodies would be wise to consider a range of factors when evaluating claims for an accommodation, including the existing market share, market concentration, the scarcity of other providers, the likelihood that the owner would sell a facility rather than shutter it, the likelihood of the government’s or a private buyer’s acquiring the facility in advance of any shut-down, how long any transition would take, and how likely it might be that the objector would bend to civil strictures rather than exit the market [43]. With Catholic-affiliated hospitals accounting for so many inpatient admissions nationally [44], and with many markets served exclusively by a sole Catholic-affiliated hospital [34, 35], policy makers may well be unwilling to engage in a high-stakes game of chicken [23].

Creative Methods for Balancing Access and Respect for Conscience

Importantly, most difficulties patients experience in getting a controversial health care service are not real access issues, as in “No accessible person or institution will perform an abortion (or other procedure) for me” [31]. Instead, they are information problems—in other words, the patient has no idea how to find the person who is willing to provide the abortion or other procedure for her. Such information problems pose a more significant hurdle for lower-income patients [45].

Many states have responded to precisely this kind of knowledge gap about access to controversial services through formal and informal “information networks.” For example, Oregon and Washington give an unqualified right to refuse to participate in physician-assisted suicide to pharmacists, physicians, and hospitals that are religiously opposed to facilitating it. State policy makers did not stop there, however. They ensure patient access with lists of willing providers on the Internet, through hospice organizations and other information networks [46, 47]. Such information networks allow the patient seeking the service to get it without great dislocation, while allowing unwilling providers to live by their convictions [48].

A Qualified Right to Object

More fundamentally, policy makers can accommodate most religious objections while preserving access to needed services by giving a qualified right to object. In this scheme, religious objectors are permitted to step aside from a service they find morally or religiously objectionable when doing so would not cause hardship to patients—typically when another willing physician or institution can just as easily provide the service. Federal conscience protection need not jeopardize patient access to abortions because an extensive network of abortion providers exists across the United States [31]. Qualifying conscience protections with hardship-minimizing requirements would prevent institutions with religious objections from acting as a choke point on the path to services. Instead it would require the institution to inform patients about where to obtain the service. For institutions, this may require advance research about where to refer patients so that medically necessary services are made available to all patients who need them. This scheme not only accommodates religious objections, but it promotes access to the necessary service, solving the informational problems that patients frequently face. A duty to refer respects institutions that say such interventions are contrary to their mission. While a religious objector may claim that providing information about an objectionable service facilitates the objectionable service, information in medicine is so central to patient care that the duty to provide accurate information should be nonnegotiable [49]. A Catholic hospital seeking to open in a rural community can abide by its conscience and ensure patient access by joining forces with another clinic that provides the objected-to services. A little creativity and planning can go a long way in respecting religious and moral objections and the legitimate needs of the public for services.



References

  1. Patient Protection and Affordable Care Act, Pub. L No 111-148, 124 Stat 119, 131 (codified at 42 USC section 300gg-13(a)(4) (2012)), amended by Health Care Education Reconciling Act of 2010, Pub L No 111-152, 124 Stat 1029 (2010).
  2. Wolf R. Obama tweaks birth control rule. USA Today. February 10, 2012. http://content.usatoday.com/communities/theoval/post/2012/02/ source-obama-to-change-birth-control-rule/1. Accessed February 19, 2013.
  3. Larotonda M. Catholic churches distribute letter opposing Obama health care rule. ABC News. January 29, 2012. http://abcnews.go.com/blogs/politics/2012/01/catholic-churches- distribute-letter-opposing-obama-healthcare-rule/. Accessed February 19, 2013.
  4. Munoz C. Health reform, preventive services, and religious institutions. White House Blog. February 1, 2012. http://www.whitehouse.gov/blog/2012/02/01/health-reform-preventive -services-and-religious-institutions. Accessed February 19, 2013.
  5. Centers for Medicare and Medicaid Services. Guidance on the temporary enforcement safe harbor. Department of Health and Human Services; February 10, 2012: 2. http://cciio.cms.gov/resources/files/Files2/02102012/20120210- Preventive-Services-Bulletin.pdf (delaying enforcement until the first plan year beginning on or after August 1, 2013 for “non-exempted, non-grandfathered group health plans established or maintained by non-profit organizations whose plans have not covered contraceptive services for religious reasons at any point from...February 10, 2012[] onward,” but requiring the plan to notify employees). Accessed February 19, 2013.
  6. Guidance issued on August 15, 2012, clarifies that the safe harbor is available to plans that object to covering “some but not all contraceptive[s],” as well as to objectors that attempted, unsuccessfully, before the February 10, 2012, safe harbor date to exclude or limit contraceptive coverage in their plans. Centers for Medicare and Medicaid Services. Guidance on the temporary enforcement safe harbor for certain employers, group health plans and group health insurance issuers with respect to the requirement to cover contraceptive services without cost sharing under section 2713 of the Public Health Service Act, section 715(a)(1) of the Employee Retirement Income Security Act, and section 9815(a)(1) of the Internal Revenue Code. Washington, DC: Department of Health and Human Services; August 15, 2012. http://cciio.cms.gov/resources/files/prev-services-guidance-08152012.pdf. Accessed February 20, 2013.
  7. CNS Staff. HHS 1-year extension may not apply to student plans. Campus Notes: The Cardinal Newman Society Blog. February 2, 2012. http://www.cardinalnewmansociety.org/CatholicEducationDaily/ DetailsPage/tabid/102/ArticleID/587/hhs-1-year-extension-may- not-apply-to-student-plans.aspx. Accessed February 20, 2013.
  8. Greg Johnson G. Obama’s ‘fig-leaf’ compromise on contraception won’t mollify conservatives. Knoxville News Sentinel. February 12, 2012. http://www.knoxnews.com/news/2012/feb/12/obamas-fig-leaf -compromise-on-contraception-wont. Accessed February 20, 2013.
  9. Wolf R. Obama tweaks birth control rule. USA Today. February 10, 2012. http://content.usatoday.com/communities/theoval/post/2012 /02/source-obama-to-change-birth-control-rule/1 (noting that “White House officials took pains to avoid the word ‘compromise,’ [because] under the accommodation, no woman who wants access to contraceptives should be denied”). Accessed February 19, 2013.
  10. Dolan T. Unacceptable. Becket Fund for Religious Liberty. February 28, 2012. http://www.becketfund.org/wp-content/uploads/2012/02/ Unacceptable-2-28-12pm.pdf (observing that “it is unrealistic to suggest that insurance companies will not pass the costs of these additional services on to the purchasers,” and thus “[i]t is no answer to respond that the religious employers are not ‘paying’ for this aspect of the insurance coverage….”). Accessed February 20, 2013.
  11. Department of Health and Human Services. Women’s preventative services coverage and religious organizations. http://cciio.cms.gov/resources/factsheets/womens-preven -02012013.html. Accessed February 20, 2013.
  12. “Today’s proposed rule does nothing to protect the religious freedom of millions of Americans.” Duncan K. Still unacceptable and unconstitutional: HHS Proposed Rule still leaves religious Americans at risk [news release]. Washington, DC: Becket Fund for Religious Liberty; February 1, 2013. http://www.becketfund.org/hhsannouncement1/. Accessed February 20, 2013.
  13. “So basically, the religious institutions are required by the government to give their workers an insurer and that insurer is required by the government to give those workers abortive and contraceptive coverage, but somehow these religious employers are supposed to imagine that they’re not giving their workers access to abortive and contraceptive coverage. If religious people thought about their religious obligations the way HHS lawyers think about the law, this might just work. But they don’t.” Levin Y. A new round of intolerance. National Review. February 1, 2013. http://www.nationalreview.com/corner/339566/new-round- intolerance-yuval-levin. Accessed February 20, 2013.
  14. Religious objections have come not only from Catholics, but also from representatives of numerous Muslim, mainline Christian, and “evangelical Christian” universities. See generally Dolan et al, 2-47 (including as signatories the leaders of Zaytuna College, Houston Baptist University, Southern Baptist Theological Seminary, Southeastern Baptist Theological Seminary, Union University, Oklahoma Baptist University, Dordt College, East Texas Baptist University, Arizona Christian University, Oklahoma Christian University, and Biola University, among other religious institutions of higher education).
  15. HHS mandate information central. Becket Fund. http://www.becketfund.org/hhsinformationcentral/ (listing lawsuits). Accessed February 20, 2013.
  16. Order list: 568 US: Monday, November 26, 2012. US Supreme Court. http://www.supremecourt.gov/orders/courtorders/112612zor _f204.pdf. Accessed February 20, 2013.
  17. Memorandum in support of motion for preliminary injunction. Cenzon-DeCarlo v. Mount Sinai Hospital, 2010 WL 169485 (ED NY 2010) (No. 09-3120): 1. http://www.telladf.org/UserDocs/Cenzon-DeCarloPIbrief.pdf. Accessed February 20, 2013.
  18. Complaint, Danquah et al. v. University of Medicine & Dentistry of New Jersey, Case No. 2:11-cv-06377-JLL-MAH (D NJ, Oct. 31, 2011) (on file with author).
  19. Colon L. Letter to Matthew S. Bowman and David Reich, reference number 10-109676. February 1, 2013. http://www.adfmedia.org/files/Cenzon-DeCarloHHSfindings.pdf. Accessed February 20, 2013.
  20. Wilson RF. Empowering private protection of conscience. Ave Maria Law Rev. 2010;9:101,104.
  21. Roe v. Wade, 410 US 113 (1973).
  22. Some forms of emergency contraceptives truly act as a contraceptive, while others appear to act as “contragestives” which some would view as an abortifacients. See also Catholic entrepreneur and family file suit against federal employer mandate [news release]. Chicago, IL: CatholicVote.org; Oct. 8, 2012. http://www.catholicvote.org/discuss/wp-content/uploads/ 2012/10/autoc.pdf. Accessed February 20, 2013.
  23. Wilson RF. The calculus of accommodation: contraception, abortion, same-sex marriage, and other clashes between religion and the state. Boston College Law Rev. 2012;53:1417-1513. http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi? article=1130&context=wlufac.
  24. Stein R. Birth control: latest collision between individual conscience and society. NPR. February 16, 2013. http://www.npr.org/blogs/health/2012/02/16/146921508/birth- control-latest-collision-between-individual-conscience-and-society. Accessed February 20, 2013.
  25. Vischer RK. Conscience and the Common Good: Reclaiming the Space Between Person and State. Cambridge, UK: Cambridge University Press; 2009.
  26. Citizens United v Federal Election Commission, 558 US 310 (2010) (prohibiting the “suppress[ion of] political speech on the basis of the speaker’s corporate identity,” stating that “No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations”).
  27. Hosanna-Tabor Evangelical Lutheran Church & School v EEOC, 132 S Ct 694 (2012).
  28. Wilson RF. Matters of Conscience: Lessons for Same-Sex Marriage from the Health care Context (2008). In: Laycock D, Picarello AR Jr, Wilson RF, eds. Same-Sex Marriage And Religious Liberty: Emerging Conflicts. Lanham, MD: Rowman and Littlefield; 2008:77-102. http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi? article=1173&context=wlufac. Accessed February 20, 2013.
  29. Bowman M, Christopher Schandevel C. The harmony between professional conscience rights and patients’ right of access [2012]. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1998363. Accessed February 20, 2013.
  30. Wilson RF. Insubstantial burdens: the case for government employee exemptions to same-sex marriage laws. Nw J Law Soc Policy. 2010;5:318 (looking at giving qualified Exemptions based on hardship Insubstantial Burdens). http://scholarlycommons.law.wlu.edu/wlufac/127/. Accessed February 20, 2013.
  31. Wilson RF. The limits of conscience: moral clashes over deeply divisive health care procedures. Am J Law Med. 2008;34 41.
  32. Gold RB. Advocates work to preserve reproductive health care access when hospitals merge. Guttmacher Rep Pub Policy. 2000:3. http://www.guttmacher.org/pubs/tgr/03/2/gr030203.pdf. Accessed February 20, 2013.
  33. “14 states allow some health care providers to refuse to provide services related to contraception. 11 states allow individual health care providers to refuse to provide services related to contraception. 6 states explicitly permit pharmacists to refuse to dispense contraceptives. (6 additional states have broad refusal clauses that do not specifically include pharmacists, but may apply to them.) 9 states allow health care institutions to refuse to provide services related to contraception; 5 states limit the exemption to private entities.” State policies in brief: refusing to provide health services. Guttmacher Institute. http://www.guttmacher.org/statecenter/spibs/spib_RPHS.pdf. Accessed February 20, 2013.
  34. Bucar L. Caution: Catholic health restrictions may be hazardous to your health. Catholics for a Free Choice; 1999. http://www.catholicsforchoice.org/topics/healthcare/documents/ 1998cautioncatholichealthrestrictions.pdf (collecting counties throughout the United States served solely by Catholic hospitals).
  35. Abelson R. Catholic gains in health care include strings. New York Times. February 21, 2012:A1.
  36. “The bishops would love to have the separation between church and state we thought we enjoyed just a few months ago, when we were free to run Catholic institutions in conformity with the demands of the Catholic faith, when the government couldn’t tell us which of our ministries are Catholic and which not, when the law protected rather than crushed conscience.” George F. What are you going to give up this Lent? Catholic New World. February 26, 2012. http://www.catholicnewworld.com/cnwonline/2012/0226/cardinal.aspx.
  37. Wen P. Catholic charities stuns state, ends adoptions. Boston Globe. March 11, 2006: A1.
  38. Wilson RF. A matter of conviction: moral clashes over same-sex adoption. BYU J Public Law. 2008;22:475-497.
  39. William Wan W. Catholic charities to limit health benefits to spouses. Washington Post. March 2, 2010: A1.
  40. Goodstein L. Illinois bishops drop program over bias rule. New York Times. December 29, 2011: A16 (describing the process by which Illinois bishops “followed colleagues in Washington, D.C., and Massachusetts who had jettisoned their adoption services rather than comply with nondiscrimination laws”).
  41. Boorstein M. Catholic Archdiocese ends D.C. foster-care program. Washington Post. February 17, 2010: B1.
  42. Smith EE. Washington, gay marriage and the Catholic Church. Wall Street Journal. January 9, 2010: A11.
  43. With adoption services, legislators considering a religious exemption might consider a variety of factors, such as the impact an exemption (or denial of one) would have on children awaiting adoption and same-sex couples seeking to adopt. Among other questions, legislators should also ask whether other providers of adoption services would readily serve gay couples seeking to adopt, whether information-forcing rules could direct prospective parents to willing providers, and if the state rejects religious accommodations, whether objecting agencies would exit the market, and if so, how many children would they have placed and how many of these children would be picked up by other agencies after their exit.
  44. Gold, 3.
  45. Diament NJ, Hunter J, Kmiec D, et al. Comments submitted to the U.S. Department of Health and Human Services with regard to the proposed rescission of the “conscience regulation” relating to health care workers and certain health care services [RIN: 0991-AB49] (April 7, 2009).
  46. Or Rev Stat section 127.885
  47. Wash Rev Code section 70.245.190.
  48. Many of the women who have experienced difficulty in obtaining emergency contraceptives have encountered "search costs” that would be eliminated with better information. Thus, the patient in one complaint filed with the Washington State Board of Pharmacy obtained EC less than an hour after the initial refusal took place. Song K. Women complain after pharmacies refuse prescriptions. Seattle Times. August 1, 2006: A5. With better information, the patient would obtain the service without hardship or inconvenience.
  49. Dresser R. Professionals, conformity, and conscience. Hastings Center Rep. 2005;35(6):9-10.

Cameron Flynn, JD, is a law fellow at Washington and Lee University School of Law, where he received his JD in 2012.

Robin Fretwell Wilson, JD, is the Class of 1958 Law Alumni Professor of Law at Washington and Lee University School of Law. She signed the amicus curiae brief in Stormans, Inc. et al. v. Mary Selecky and Judith Billings et al., a brief before the U.S. Court of Appeals for the Ninth Circuit.

The Limits of Conscientious Refusal: A Duty to Ensure Access, March 2013

Religious Employers and Exceptions to Mandated Coverage of Contraceptives, March 2013

Protecting Positive Claims of Conscience for Employees of Religious Institutions Threatens Religious Liberty, March 2013

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