American Journal of Law & Medicine

Beyond politics: a social and cultural history of federal healthcare conscience protections.


The day before the inauguration of his Democratic successor, President George W. Bush oversaw the promulgation of an administrative rule that extended "sweeping" (1) new conscience protections to healthcare providers, one which would allow them to refuse to participate in or refuse to refer for medical services to which they morally or religiously object. (2) Enacted in a funding regulation through the Department of Health and Human Services ("HHS"), the rule--commonly called the Provider Conscience Regulation ("Regulation")--purported to clarify and implement existing federal law; by its own terms; however, the Regulation pushed the boundaries of those laws, granting protections to a broader class of individuals and across a wider range of services. (3) In so doing, the Regulation sought to resolve an ongoing tension between patient access and provider autonomy, yet it served to reignite a long-standing debate over the proper role of morals in medicine. (4)

Entering office in January 2009, President Barack Obama inherited both the Regulation and the consequent debate. Though his Administration published a proposed rescission of the rule on March 10, 2009--with the public comment period ending April 9, 2009--the current HHS has yet to issue a formal rescission of the rule. (5)

Despite its unknown fate, the Provider Conscience Regulation presents a vital opportunity for reflection. While state governments have consistently legislated in the area of provider conscience, the federal government has only done so a handful of times, and never before through an administrative regulation. (6) In claiming its ancestry in these rare instances of federal involvement, the Regulation then begs the question: when and why has the federal government chosen to exert its power to insulate healthcare providers' freedom of conscience?

In answering this question, I seek to surpass the superficial explanation of politics and ideology that seems to arise in most discussions of morals in medicine. (7) While such interests surely motivate governmental actors, they fail to carry the weight of a comprehensive explanation of the forty-year trajectory of federal conscience protections. Indeed, though party politics and ideology may provide a framework by which individuals interpret the world, absent extenuating circumstances, they do not create the events one must interpret.

My aim, then, is to explore the world in which federal conscience provisions were enacted and to identify potential historical triggers for such protections. Due to the myriad factors that influence governmental decision-making, I refrain from positing a direct causal connection between the cultural events and the corresponding federal action discussed below. Rather, I suggest that certain social and cultural events introduced moral challenges to the practice of medicine, which, in turn created the perceived need for conscience protections. Thus, the judicial expansion of reproductive rights in the 1970s, the changing landscape of medical education and the healthcare industry throughout the 1990s, and the introduction of a chemical contraceptive and the influence of professional medical organizations through the new millennium relay the underlying narrative of federal conscience protections.

This Note will proceed in three parts. Part II will lay the conceptual framework for a substantive discussion of "conscience clauses," articulating a working definition of the term and introducing elements pertinent to the ongoing debate over their validity. Part III will provide the legal and social history of federal conscience protections in chronological order, beginning with the Church Amendment of 1973 and concluding with the Provider Conscience Regulation of 2009. This section will both describe the substance of the legislation (or administrative rule) and explore the relevant advancements in society or culture that underlie them. I will then conclude in Part IV, arguing that this historical analysis reveals a paradox in which various attempts to expand patients' access to care triggers a perceived threat to provider conscience, with the federal government consistently resolving this tension in favor of the provider.



Generally speaking, a conscience clause (8) is a "legislative provision that allows a person to claim an exemption from compliance, usually on religious-freedom grounds." (9) Within the healthcare context, these provisions work to "reconcile 'the conflict between religious healthcare providers who provide care in accordance with their religious beliefs and the patients who want access to medical care that these religious providers find objectionable.'" (10) Though originally conceived as protective mechanisms through which individuals and healthcare entities could refuse to perform abortions or sterilizations, (11) conscience clauses may now shield physicians, pharmacists, institutions and insurers from participating in a range of services, such as "contraception, insurance to cover contraception, family planning services or referrals ... assisted reproduction, human cloning, fetal experimentation, euthanasia and termination of life support." (12) Though providers and payers may object to a large range of services, those concerning female reproductive care remain "the most prominent and prevalent use of the shield of conscience clauses." (13)


Though different types of conscience protections may raise specific issues, this class of provisions generally presents a challenging set of questions concerning faith and morality, autonomy and access. They implicate the moral dilemma of a religious doctor opposed to distributing birth control, the practical reality of a woman seeking to prevent an unwanted pregnancy, and the complicated struggle of a society striving to accommodate both. To fully comprehend this inherent tension, we must situate ourselves within the broader debate over conscience clauses, and briefly examine the philosophical, practical and constitutional consequences of such provisions.

1. The Clash of Provider Autonomy and Patient Self-Determination

At a fundamental level, conscience clauses implicate the autonomy interests of the relevant parties, specifically the freedom of a provider to practice according to her own moral or religious code and the freedom of a patient to direct her own healthcare decisions. Asserted rights of refusal and access have thus evolved into foundational elements of the debate over conscience protections. Where these two interests conflict, proponents of conscience protections focus on the potential ill effects of requiring a healthcare professional to provide care. (14) They argue that denying providers this shield would diminish both their personal morality and professional autonomy, (15) for it would strip providers of their ability to live their faith and practice their vocation as they see fit. (16) Conversely, opponents of conscience clauses advocate an approach "in which the patients' interests prevail, even if ministering to these interests compromises the physician's personal beliefs (but not the medical ethics to which she is bound)." (17) Under this view, a provider's ability to withhold information from or refuse care to patients is not only an assault upon the patients' self-determination, but also a breach of the duty of informed consent, for "the patient's right to self-decision can be effectively exercised only if the patient possesses enough information to enable an intelligent choice." (18) Thus, while advocates of conscience protections uphold these provisions as instituting the necessary respect for providers' autonomy and morality, their detractors challenge them as trampling patients' inherent right to direct their own medical care.

2. The Consequences of Protection (and Care) Denied

In addition to the philosophical clashes of morality and autonomy presented above, conscience clauses trigger a range of practical consequences for providers and patients alike. Providers may face sanctions from employers and professional licensing organizations for not distributing care, (19) while patients may suffer the physical ramifications of treatment denied. (20) And, conscience clauses serve as one mechanism by which we, as a society, may decide which concessions to grant to each.

In espousing the need for conscience protections, providers and commentators emphasis the practical concerns of job security and provider supply. (21) They cite incidents of demotions, firings and other adverse actions to suggest that discrimination is a real obstacle to the personal and professional development of individuals attempting to infuse their work with their faith. (22) And, fearing that threats to their moral or religious beliefs may deter people from entering the medical field, proponents of conscience protections suggest that these regulations are required "to ensure that providers enter and remain in the healthcare professions, helping to meet the rising demand for quality care." (23)

Opponents of conscience protections counter these arguments with the very real, physical ramifications of denying treatment to patients. (24) They argue, for example, that a doctor's refusal to prescribe a contraceptive or a pharmacist's refusal to distribute the drug may put a woman at risk of an unwanted or dangerous pregnancy, (25) a risk that may increase if the drug sought is an emergency contraceptive, which is only effective within a narrow time period. (26) Such commentators further suggest that the uneven availability of care across the United States exacerbates the effects of conscience protections, and overly burdens women in particular geographic areas. (27) They cite statistics revealing that in 2000, for example, "eighty-seven percent of counties in the United States had no abortion provider." (28) Thus, for the one-third of American women living in these counties, (29) a doctor's refusal to provide an abortion would dictate their healthcare decisions, forcing them to forgo the procedure or "travel to other counties or states to obtain this constitutionally protected service." (30)

In an ideal society, "doctors should never have to choose between their vocations and their consciences[,] and the quality of women's healthcare should never depend on the conscience of her doctor or hospital." (31) Our society, however, is far from ideal, and this bifurcated reality of refusal and access reveals the ongoing tension that conscience protections (or lack thereof) may present to both providers and patients.


Beyond the moral and practical concerns that conscience protections implicate, scholars and litigants raise a series of constitutional concerns when debating these provisions. (32) In this section, I will briefly describe the constitutional arguments available under the First and Fourteenth Amendments. Recognizing that these issues--and the litigation surrounding them--are quite complex, this section is but a brief excursion into this aspect of the debate.

I. Providers' Potential Refuge in the Religion Clauses

In relevant part, the First Amendment reads "Congress shall make no laws respecting an establishment of religion, or the free exercise thereof." (33) Driven by the Framers' concerns over the entanglement of church and state, (34) the First Amendment delineates the boundaries of state action through the "complementary values" (35) of the Establishment and Free Exercise Clauses.

On its face, the Establishment Clause "commands a separation of church and state," (36) and generally prohibits federal and state governments "from privileging one religion over another, or ... religion over non-religion." (37) In practice, however, the Establishment Clause has suffered a jurisprudential history fraught with friction over the initial test employed to decipher its meaning. First announced in Lemon v. Kurtzman, (38) this test requires that a statute "nave a secular legislative purpose," (39) that its principal or primary effect neither advance nor inhibit religion, and that it not foster an "excessive entanglement with religion." (40) Though members of the Court deride its sporadic use, (41) the Lemon test remains a "prominent ... rubric for analyzing Establishment Clause issues." (42)

In searching for constitutional support for conscience clauses, proponents of these schemes readily turn to Lemon to argue that these regulations are permissible under the Establishment Clause. (43) Under this analysis, conscience clauses are characterized as having the secular purpose of "safeguarding a provider's freedom to act legally within the bounds of their consciences." (44) Proponents further argue that, because conscience clauses apply indiscriminately to healthcare providers of all religious creeds and moral affiliations rather than privilege a specific religious sect, (45) their primary effect "neither advances nor inhibits religion. …

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