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BDF Comment to HHS on Healthcare Rights of Conscience
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Nikolas T. Nikas, Esq.
President & General Counsel
Dorinda C. Bordlee, Esq.
Vice President, Senior Counsel
April 8, 2009
Office of Public Health and Science,
Department of Health and Human Services
Hubert H. Humphrey Building,
200 Independence Avenue, SW., Room 728E
Washington, DC 20201
RE: Opposition to Rescinding Provider Conscience Regulation, 73 Fed. Reg. 50274
Dear Sir or Madam:
Bioethics Defense Fund is a public interest law firm dedicated to protecting the fundamental human right to life. We are often contacted by medical students, physicians, pharmacists and scientists who face discrimination and threatened dismissal due to their conscientious objections to practices such as abortion, dispensation of abortifacient drugs, and research that involves the destruction of human embryos.
A healthcare professional’s freedom of conscience is an untouchable human right that should never be subject to political posturing. We therefore write to oppose the administration’s proposal to rescind the conscience regulation published at 73 Fed. Reg. 50274.
Our nation was founded on the fundamental human right of conscience. James Madison, the Father of the Bill of Rights and author of the First Amendment said that “[c]onscience is the most sacred of all property.”
Article 18 of the UNIVERSAL DECLARATION OF HUMAN RIGHTS states that “[e]veryone has the right to freedom of thought, conscience and religion.”
The right of conscience is of particular importance in the field of health care. The World Health Organization (2006) recognizes that the issue of abortion evokes a “diversity of attitudes towards the life of the unborn child” and “is a matter of individual conviction and conscience that must be respected.”[FN 1]
Even the United States Supreme Court in Roe v. Wade took note of the American Medical Association’s 1970 resolution that “no party to the [abortion] procedure should be required to violate personally held moral principles.” Proceedings of the AMA House of Delegates 220 (June 1970), cited in Roe v. Wade, 410 U.S. 113, 144 (1973). Similar AMA resolutions affirming that “[n]either physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles” have been adopted and reaffirmed in 1973, 1986, 1996, 1997, 2000. AMA House of Delegates Policy 5.995.
The targeted regulation, entitled “‘Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law,’’ is absolutely necessary because the fundamental right of conscience is rendered meaningless if there are no effective means of enforcement against those who violate it.
The targeted regulation enables healthcare professionals experiencing discrimination to file a complaint with the Office for Civil Rights within the Department of Health and Human Services based on underlying federal conscience protections. The previous lack of a regulatory structure left healthcare professionals and medical students whom we advise with uncertainty as to effective recourse.
We recognize that the current administration may seek to interpret current conscience protections so as to define “abortion” as excluding the destruction of embryos prior to the time that they have implanted in their mother’s womb. In so doing, Catholic hospitals and providers, and other providers morally opposed to abortion, could be coerced into dispensing abortifacient drugs that are designed to result in the destruction of a human being at the embryonic stage of life.
Interpreting “abortion” to exclude the destruction of human life either before or after uterine implantation would be inconsistent with definitive medical school text books on human embryology identifying the fact that fertilization “mark[s] the beginning of each of us as a unique individual.” [FN 2.]
Maintaining the status quo of the current regulation will not impose any burdens on health care professionals who do not have conscientious objections, but instead would continue to provide important protection to those who do. Maintaining the status quo also has no impact on patient access. The targeted regulation has been in effect for several months, and there has been no public outcry indicating a negative impact on the availability of abortion, contraceptive or abortifacient drugs or any other practice or procedure.
Bioethics Defense Fund respectfully urges the administration to retain the regulation, both in the interest of health care professionals as well as for patients whose access to health care would be severely reduced if people who respect the dignity of all human life are driven out of their professions or discouraged from entering the health care field due to the threats of being coerced to act against their conscience.
Sincerely,
BIOETHICS DEFENSE FUND
Nikolas T. Nikas
President, General Counsel
Dorinda C. Bordlee
Vice President, Senior Counsel
FN 1. WORLD MEDICAL ASSOCIATION DECLARATION ON THERAPEUTIC ABORTION, Adopted by the 24th World Medical Assembly, Oslo, Norway, August 1970 and amended by the 35th World Medical Assembly Venice, Italy, October 1983 and the WMA General Assembly, Pilanesberg, South Africa, October 2006.
FN 2. See, e.g., Keith L. Moore and T.V.N. Persaud, THE DEVELOPING HUMAN: CLINICALLY ORIENTED EMBRYOLOGY 16 (7th ed. 2003)(“Human development begins at fertilization when a male gamete or sperm (spermatozoon) unites with a female gamete or oocyte (ovum) to produce a single cell – a zygote. This highly specialized, totipotent cell marked the beginning of each of us as a unique individual.”);
See also, William Larsen, HUMAN EMBRYOLOGY 4 (3rd ed. 2001)(explaining that male and female sex cells “unite at fertilization to initiate the embryonic development of a new individual.”)(emphasis added).
YOU can send a comment to the Obama DHHS
Go to BDF Main Conscience Page
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