Obama ready to undo Bush medical conscience clause

March 2, 2009

Should health care workers such as doctors, nurses, and pharmacists be able to avoid their otherwise expected duties when they have religious objections? The Obama administration has stepped into this urgent question. A Bush administration regulation from its last days did award this sort of medical exemption from duties. Many religious organizations and religiously based health care facilities had desired this rule for decades, since the Roe v. Wade abortion decision. As the New York Times reports on the Bush regulation,

"The rule prohibits recipients of federal money from discriminating against doctors, nurses and other health care workers who refuse to perform or assist in abortions or sterilization procedures because of their ‘religious beliefs or moral convictions’.” Article by David Stout,   "Obama Set to Undo ‘Conscience’ Rule for Health Workers" in the New York Times . Also see   another article in the Washington Post .

Action against the Bush rule had already been undertaken by several states and privacy rights organizations. As reported in   an article at The Consumerist , seven state attorneys general, Planned Parenthood, and the ACLU sued to prevent enforcement.

Ever since Roe v. Wade, many religious health care providers have sought a legal way to avoid having anything to do with abortions, artificial reproduction like IVF, birth control, and other ethically contoversial matters like removing life support. They portrayed their cause as a fight for a basic democratic right, the right to be a "conscientious objector" to such procedures.

Exemptions from professional service and legal requirement are necessary to preserve the still more fundamental civil right to religious liberty. But is this issue just a conflict between ordinary government concerns and extraordinary civil right protections? If this is the best way to depict this issue, then the resolution may seem simple; indeed, probably too simple. There is a long legal history, in the United States and several other countries, of carving out special exemptions from legal requirements in order to protect individual religious liberties. In the conflict between crucial constitutionally protected civil rights and important governmental interests in personal and social welfare, it appears more justifiable, in many cases, to create an exemption for the individual’s civil rights. For example, the term “conscientious objector” originated in the debate over whether individuals should be compelled to perform military service despite their religious objection to personally participating in military activity.

If the desire for conscientious objection exemptions on the part of health care professionals is best framed as roughly analogous to the desire for religious exemptions to military service, then the case for these medical exemptions can be considerably strengthened. Perhaps exemptions for health care providers are best understood simply as gradually expanded applications of the principle that sincere religious objections to professional duty should prevail over important government interests.

The Obama administration apparently disagrees. And there are some good reasons. Watch this blog for more commentary on this important debate over civil liberties.