Escolar Documentos
Profissional Documentos
Cultura Documentos
Healthcare
Rights of Conscience
L egal protection for healthcare rights of conscience affirms the need
to provide quality care to patients, but also acknowledges that certain
demands of patients, usually for procedures that are life-destructive and not
life-saving, must not be blindly accommodated to the detriment of the rights
of healthcare providers. Individuals and institutions do not lose their right to
exercise their moral and religious beliefs and consciences once they decide
to enter the healthcare profession.
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to refuse to participate in any healthcare service to which they con-
scientiously object.
“Much of the debate focused on strategy, with conscience protections just weeks after the U.S.
participants wondering whether it was better Supreme Court handed down Roe v. Wade. In
to work toward improving and narrowing con- 1973, Congress passed the first of the Church
science clauses or to fight to eliminate them Amendments (named for its sponsor, Senator
altogether. … Although reproductive rights ac- Frank Church). The Amendment provides that
tivists should still work to improve conscien- the receipt of funding through three federal
tious objections, their ultimate goal should be programs cannot be used as a basis to com-
getting rid of them.” pel a hospital or individual to participate in an
-Then-ACLU Executive Director Ira Glasser, abortion or sterilization procedure to which the
2002 Executive Summary, “Conscientious Ob- hospital or individual has a moral or religious
jections and Reproductive Rights”1 objection.
federal government and state or local govern- College of Obstetricians and Gynecologists
ments that receive federal financial assistance (ACOG) issued an ethics opinion (recently re-
from discriminating against individual and affirmed in November 2010) that, when taken
institutional healthcare providers, including in conjunction with the American Board of
participants in medical training programs, who Obstetrics and Gynecology’s (ABOG) stan-
refused to, among other things, receive training dards for physician certification, has the poten-
in abortions; require or provide such training; tial to force physicians to either violate their
perform abortions; or provide referrals for, or consciences by referring patients for abortions
make arrangements for, such training or abor- or risk losing their board certification.
tions.3
“[The] proposed regulation is about the legal
The most recent federal conscience protection, right of a healthcare professional to practice ac-
the Hyde-Weldon Amendment, was first enact- cording to [his or her] conscience,” then-HHS
ed in 2005 and provides that no federal, state, Secretary Mike Leavitt said. “Doctors and oth-
or local government agency or program that er healthcare providers should not be forced
receives funds in the Labor/Health and Hu- to choose between good professional standing
man Services (HHS) appropriations bill may and violating their conscience. Freedom of ex-
discriminate against a healthcare provider be- pression and action should not be surrendered
cause the provider refuses to provide, pay for, upon the issuance of a healthcare degree.”5
provide coverage of, or refer for abortion. The
Amendment is subject to annual renewal and In his press release, Secretary Leavitt also not-
has survived multiple legal challenges brought ed that the proposed regulation would:
primarily by pro-abortion groups.
• Clarify that nondiscrimination protec-
Recent Actions by HHS tions apply to institutional healthcare
providers as well as to individual em-
On August 26, 2008, HHS published and so- ployees working for recipients of cer-
licited public comment on a proposed regula- tain funds from HHS;
tion4 that would implement and strengthen the • Require recipients of certain HHS
enforcement of existing federal conscience funds to certify their compliance with
protections. Specifically, the regulation would laws protecting provider conscience
require that recipients of HHS funding provide rights;
written certification of their compliance with • Designate the HHS Office for Civil
federal conscience protections. Rights as the entity to receive com-
plaints of discrimination addressed by
The regulation was specifically developed in the existing statutes and the proposed
response to increasing threats from and attacks regulation; and
by pro-abortion groups and others on the rights • Charge HHS officials to work with any
of conscience of healthcare providers who de- state or local government or entity that
cline to provide, participate in, or refer for abor- may be in violation of existing statutes
tions. Specifically, in early 2008, the American and the proposed regulation to encour-
age voluntary steps to bring that gov- morale, discipline, safety, or health. Any refus-
ernment or entity into compliance with als to provide medical care based on religious
the law.6 objections should be disclosed in advance to
If compliance is not achieved, HHS officials the provider’s chain of command and to pa-
will consider all legal options, including termi- tients as the need arises.
nation of funding and the return of funds paid
out in violation of the nondiscrimination provi- DOD Directive (DODD) 6000.14, Patient Bill
sions.7 of Rights and Responsibilities in the Military
Health System, dated 30 July 1998, provides,
The regulation was approved in December in pertinent part, that:
2008. In a predictable and overwrought re-
sponse, pro-abortion groups launched a mas- (1) A provider who disagrees with a pa-
sive misinformation campaign, alleging that tient’s wishes [as to a treatment], as a
HHS was trying to impede women’s access matter of conscience, should arrange
to healthcare in general and to contraceptives for transfer of care to another qualified
in particular. However, in reality, it is the provider willing to proceed according
abortion advocates’ campaign against con- to the patient’s wishes within the limits
science protections that is endangering access of the law and medical ethics.
to healthcare for all Americans by threatening (2) Military treatment facilities and Tri-
to drive providers from the profession.8 After care [health insurance system for mili-
reviewing public comments, HHS adopted the tary dependents and retirees and their
regulation in December 2008. Unfortunate- dependents] network providers and
ly, the abortion advocates campaign appears facilities shall disclose to patients…
to have worked. On February 27, 2009, the matters of conscience … that could
Obama Administration announced its intent to influence medical advice or treatment
rescind these rules. decisions.
Protections for While individual healthcare providers may
Military Healthcare Providers refuse to participate in certain medical pro-
cedures, these procedures will still generally
Notably, federal law also provides protections be provided by the military treatment facility
for military healthcare providers. Pursuant to (MTF) or an affiliated civilian facility or pro-
Department of Defense (DOD) and individual vider. Elective abortion is the only exception
service directives, military healthcare provid- to this rule. Abortions are not performed in
ers may refuse to participate, directly or in- MTFs unless the mother’s life is endangered
directly, in medical procedures that they find by a continued pregnancy or the pregnancy re-
morally or religiously objectionable. As with sults from rape or incest.
other rights of religious accommodation, this
right will be balanced against military neces- Military treatment facilities, both in the conti-
sity and the potential adverse affect on unit nental United States and at overseas locations,
readiness, individual readiness, unit cohesion,
• Health care is not a commodity, it is service. Those in the field are not clerks or automa-
tons, but serious professionals trained to provide specialized care. As professionals, they
engage in decision-making that is informed by their intellects and their consciences.
• Conscience is subjective but not relative, and is defined by the individual through his/her
religious faith, morality, or ethics. Conscience is applied to all actions and decisions and
cannot be ignored or compartmentalized.
• Freedom of conscience is an American ideal. That is, conscience is the freedom from
coercion (by the government or other individuals) to act against one’s will.
• Freedom of conscience protections affirm the need to provide quality care to patients and
do not interfere with existing medical malpractice standards. They merely acknowledge
that certain demands of patients, usually for procedures that are life-destructive and not
life-saving, must not be blindly accommodated to the detriment of the rights of health-
care providers.
• Individuals and institutions do not lose their right to exercise their moral and religious
beliefs and conscience once they decide to become health care providers.
• Nothing in the laws protecting healthcare rights of conscience prevents others from pro-
viding the healthcare service to which a conscientious objection has been made.
• Importantly, conscientious objections are most often raised concerning elective services,
such as abortion, contraception, sterilization, physician-assisted suicide, and withdrawal
of nutrition and hydration, rather than necessary or lifesaving services. Therefore, the
lack of participation in these practices by a healthcare provider or institution will not
endanger the lives or health of patients.
• Moreover, legal action and other pressure to compel healthcare providers to participate
in procedures to which they conscientiously object threaten to make the already danger-
ous situation disastrous. By forcing healthcare professionals to choose between con-
science and career, we will lose doctors, nurses, and other healthcare professionals who
are already in short supply, especially in rural parts of the country. We will also effec-
tively bar competent young men and women, desperately needed, from entering these
vital professions.
• The strategy being used by abortion advocates and others to compel conscience is both
clever and chilling. If they can create legal precedent to compel violation of conscience
for one procedure (e.g., dispensing contraceptives) or group of healthcare providers (e.g.,
pharmacists), they will have established the legal precedent necessary to compel doctors
to participate in surgical abortion and to compel all healthcare providers to participate in
other objectionable procedures and services.
• Efforts to expand legal coercion are well underway and they include mandatory referral
of patients. For example, on August 30, 2005, Michael Mennuti, the President of Ameri-
can College of Obstetrics and Gynecology (ACOG), wrote to the U.S. Congress, stating
the official position of ACOG: “Doctors who morally object to abortion should be re-
quired to refer patients to other physicians who will provide the appropriate care.” Re-
cent actions by ACOG and the American Board of Obstetrics and Gynecology (ABOG)
to make board certification or recertification dependent on compliance with ACOG’s
position on referrals for abortion furthers this coercive effort.
• Such efforts by ACOG and ABOG are only the first steps. After forcing complicity, the
next step will be the coercion of active participation in abortion and other objectionable
services and procedures by morally-objecting providers.
• Opponents of rights of conscience argue that only individuals can or should have (lim-
ited) rights of conscience. This is short-sighted and purposely misunderstands the notion
that the mission of an organization or institution (such as a public or private hospital
or a healthcare insurer) is informed by the individuals controlling that organization or
institution.
Two states protect the civil rights of all healthcare providers, whether individuals,
institutions, payers (public or private) who conscientiously object to participating in
any healthcare procedure or service: LA and MS
Forty-five states protect the civil rights of only certain healthcare professionals
and/or institutions from participating in specific procedures (usually abortion only):
AK, AZ, AR, CA, CO, CT, DE, FL, GA, HI, ID, IL, IN, IA, KS, KY, ME, MD, MA,
MI, MN, MO, MT, NE, NV, NJ, NM, NY, NC, ND, OH, OK, OR, PA, RI, SC, SD,
TN, TX, UT, VA, WA, WI, WV, and WY.
Three states provide no protection for the civil rights of healthcare providers,
institutions, or payers: AL, NH, and VT.
Eleven states provide some specific protection for civil rights of pharmacists and
pharmacies: AZ, AR, CA, GA, ID, KS, LA, ME, MS, NC, and SD
Often thought of as a contemporary problem, • Health care payer: Any entity or em-
the issue of rights of conscience was referenced ployer (religiously-affiliated or non-
and considered by our Founding Fathers. For religiously-affiliated) that contracts
example, Thomas Jefferson wrote, “No pro- for, pays for, or arranges for the pay-
vision in our Constitution ought to be dearer ment of, in whole or in part, any health
to man than that which protects the rights of care service or product, including, but
conscience against the enterprises of the civ- not limited to: health maintenance or-
il authority.” Moreover, traditional western ganizations, health plans, insurance
thought has understood individual conscience companies, or management services
to be a guide for action and indispensable to organizations.
appropriate action.
• Healthcare providers: A broad term
KEY TERMS used to describe individuals working
in the healthcare field. This includes
• Freedom (or right) of conscience doctors, nurses, medical students,
protection: Shields physicians and pharmacists, medical assistants, phar-
other healthcare providers from liabil- macist assistants, medical researchers,
ity, adverse administrative, and/or oth- and others. All workers engage their
er negative consequences for refusing conscience in their work; in a particu-
to participate in any healthcare proce- lar way, healthcare workers engage
dure or service that would violate their their conscience in caring for patients.
moral conscience, ethical standards, or To provide the fullest possible protec-
religious beliefs. tion for individual freedom, this term
should also be construed to include
• Conscience: Moral standards that an institutions such as public and private
individual has accepted and that regu- hospitals and health insurance compa-
late his/her actions and behavior. nies and other payers.
of the “religious right” and is designed to pro- practice standards. They merely acknowledge
mote one religious viewpoint. that certain demands of patients, usually for
Fact: Conscience is at the heart of the Ameri- procedures that are life-destructive and not
can experience. Most Americans recognize the life-saving, must not be blindly accommodated
religious freedom found in the First Amend- to the detriment of the rights of healthcare pro-
ment of the United States Constitution. It viders.
reads: “Congress shall make no law respecting
an establishment of religion, or prohibiting the Individuals and institutions do not lose their
free exercise thereof; or abridging the freedom right to exercise their moral and religious be-
of speech, or of the press; or the right of the liefs and conscience once they decide to be-
people peaceably to assemble, and to petition come healthcare providers. Nothing in the
the government for a redress of grievances.” laws protecting healthcare rights of conscience
prevents others from providing the healthcare
What Americans may not realize is that an ear- service to which a conscientious objection
ly draft of the Amendment written by James has been made. Conscientious objections are
Madison included the following: “The Civil most often raised concerning elective services,
Rights of none shall be abridged on account of such as abortion, contraception, sterilization,
religious belief or worship, nor shall any na- physician-assisted suicide, and withdrawal of
tional religion be established, nor shall the full nutrition and hydration, rather than necessary
and equal rights of conscience be in any man- or lifesaving services. Therefore, the lack of
ner, nor on any pretext infringed.” Though not participation in these practices by a healthcare
included in the final version, it is fair to say that provider or institution will not endanger the
it was assumed by the Founders to be included lives of patients.
therein.
Further, abortion proponents are increasingly
Obviously, conscience protections did not couching their arguments with the language
spring up recently—say, during the Vietnam of women’s “rights to healthcare access”. It is
War era—but are a long-standing part of the worth noting that there is no fundamental right
nation’s baric. It is also a pluralistic right, one to healthcare and, therefore, no overriding duty
embraced by Christians and non-Christians to provide it against your conscience. Also, the
alike. It is not based on respecting one faith term “access” is a red herring, as there is no
but respecting the integrity of all individuals. real problem with a patient going to another
healthcare provider for service.
Myth: Legal protection for healthcare pro-
viders’ rights of conscience will endanger the Protecting Conscience Avoids
lives of patients because it will allow health- Aggravating Existing Healthcare Crisis
care providers to decline to provide healthcare
services and thereby deny access to patients. Protecting the freedom of conscience of health-
Fact: Freedom of conscience protections af- care providers and institutions is necessary to
firm the need to provide quality care to patients avoid added stress on an already overtaxed
and do not interfere with existing medical mal- healthcare system. Experts project that cur-
rent shortages of physicians, nurses, and other vacant positions nationwide.5 Moreover, over
healthcare professionals will worsen, failing to half of the surveyed nurses reported that they
meet future requirements. intended to retire between 2011 and 2020.6 The
Council on Physician and Nurse Supply7 has
Legal action and other pressure to compel determined that 30,000 additional nurses must
healthcare providers to participate in proce- graduate annually to meet the nation’s emerg-
dures to which they conscientiously object ing healthcare needs, an expansion of 30% of
threaten to make the already dangerous situ- the current number of annual nurse graduates.
ation disastrous. By forcing healthcare pro-
fessionals to choose between conscience and Insufficient staffing raises stress levels, im-
career, we will lose doctors, nurses, and other pacts job satisfaction, and is driving many to
healthcare providers who are already in short leave nursing.8 Many recent studies also point
supply, especially in rural parts of the country. to the connection between adequate staffing
We will also effectively bar competent young and safe patient care.9 Increases in registered
men and women, desperately needed, from en- nurse staffing was associated with reductions
tering these vital professions. in hospital-related mortality and “failure to res-
cue,” as well as reduced length of stays; con-
Many women have already experienced first- versely, in settings with inadequate staffing, pa-
hand the current provider shortage, having a tient safety was compromised.10 Most hospital
hard time finding obstetricians to deliver their RNs (93%) report major problems with having
babies. In 2006, 14 percent of ACOG members enough time to maintain patient safety, detect
reported they had stopped delivering babies.1 complications early, and collaborate with other
Further, the American Association of Medical healthcare team members.11
Colleges (AAMC) projects an anticipated phy-
sician shortfall of 70,000 or more by 2025.2 More nurses at the bedside could save thou-
sands of patient lives each year.12 Patients who
As troubling as these predictions are, the nurs- have common surgeries in hospitals with high
ing shortage is even worse. Some studies pre- patient-to-nurse ratios have an up to 31% in-
dict the shortage of registered nurses in the creased chance of dying.13 Every additional
U.S. will reach 500,000 by 2025.3 Health Re- patient in an average hospital nurse’s workload
sources and Services Administration (HRSA) increased the risk of death in surgical patients
officials have projected the nation’s nursing by 7%.14 Having too few nurses may actually
shortage will grow to more than one million cost more money given the high costs of re-
nurses by 2020, and analysts show that all 50 placing burnt-out nurses and caring for patients
states will experience a shortage of nurses to with poor outcomes.
varying degrees by the year 2015—just a few
years from now.4 To slow—and not exacerbate—these shortages,
there is a need for comprehensive conscience
According to a July 2007 report released by the protections and proper enforcement of existing
American Hospital Association, U.S. hospitals federal and state laws.15 Model legislation pro-
need approximately 116,000 RNs to fill current viding such comprehensive protection is con-
tained in AUL’s “Healthcare Freedom of Con- cil on Physician and Nurse Supply.
8
In the March-April 2005 issue of Nursing Economic$, Dr. Peter
science Act,” which has already been enacted Buerhaus and colleagues found that more than 75% of RNs be-
in Mississippi and provides protection for all lieve the nursing shortage presents a major problem for the qual-
healthcare providers and all procedures. ity of their work life, the quality of patient care, and the amount
of time nurses can spend with patients. Almost all surveyed
nurses see future shortages as a catalyst for increasing stress on
Protecting rights of conscience does not ban any nurses (98%), lowering patient care quality (93%), and causing
nurses to leave the profession (93%). According to a study in
procedure or prescription and does not mandate the October 2002 Journal of the American Medical Association,
any particular belief or morality. Freedom of nurses reported greater job dissatisfaction and emotional exhaus-
conscience simply provides American men and tion when they were responsible for more patients than they can
safely care for. Researcher Dr. Linda Aiken concluded that “fail-
women the guarantees that this country was ure to retain nurses contributes to avoidable patient deaths.”
built upon: the right to be free from coercion. 9
In March 2007, a comprehensive report initiated by the Agency
Protecting conscience helps ensure providers for Healthcare Research and Quality was released on Nursing
Staffing and Quality of Patient Care. Through meta-analysis,
enter and remain in the healthcare professions, the authors found the shortage of registered nurses, in combina-
helping to meet the rising demand for quality tion with an increased workload, poses a potential threat to the
quality of care.
healthcare. Failing to do so will compromise 10
Published in the March 2006 issue of Nursing Economic$,
basic healthcare for the entire nation. a comprehensive analysis of several national surveys on the
nursing workforce found a majority of nurses reporting the RN
shortage is negatively impacting patient care and undermining
the quality of care goals set by the Institute of Medicine and the
Endnotes National Quality Forum.
1
Voice of America, US Faces Obstetrician Shortage, Au- 11
In an article published in the September/October 2005 issue
gust 2006, available at: http://www.voanews.com/english/ of Nursing Economic$, Dr. Peter Buerhaus and associates found
archive/2006-08/2006-08-07-voa51.cfm (last visited December the majority of RNs (79%) and Chief Nursing Officers (68%)
15, 2010).. believe the nursing shortage is affecting the overall quality of
2
Myrle Croasdale, Medical Schools on Target to Reach Enroll- patient care in hospitals and other settings, including long-term
ment Goals, June 23/30, 2008, available at: http://amednews. care facilities, ambulatory care settings, and student health cen-
com (last visited December 15, 2010).. ters.
3
Report released by Dr. Peter Buerhaus in March 2003. The Fu- 12
According to a study published in the October 23/30, 2002
ture of the Nursing Workforce in the United States: Data, Trends issue of the Journal of the American Medical Association. Con-
and Implications. The report estimated demand for RNs grow- ducted by nurse researchers at the University of Pennsylvania
ing 2% to 3% per year. and funded by the National Institute for Nursing Research.
4
See HRSA report, What is Behind HRSA’s Projected Supply, 13
Id.
Demand, and Shortage of Registered Nurses? Additionally, ac- 14
Id.
cording to the latest projections from the U.S. Bureau of Labor 15
Forty-seven states provide some protections for healthcare
Statistics published in the November 2007 Monthly Labor freedom of conscience. Only Alabama, New Hampshire, and
Review, more than one million new and replacement nurses will Vermont are without protective laws.
be needed by 2016. Government analysts project that more than
587,000 new nursing positions will be created through 2016 (a
23.5% increase), making nursing the nation’s top profession in
terms of projected job growth. Available at: www.bls.gov/opub/
mlr/2007/11/art5full.pdf (last visited December 15, 2010).).
5
See The 2007 State of America’s Hospitals – Taking the Pulse
available at http://www.aha.org/aha/content/2007/PowerPoint/
StateofHospitalsChartPack2007.ppt (last visited December 15,
2010).).
6
Bernard Hodes Group July 2006 study, Nursing Management
Aging Workforce Survey, available at http://www.hodes.com/in-
dustries/healthcare/resources/research/agingworkforce.asp (last
visited December 15, 2010).).
7
March 2008 statement released by an independent healthcare
group study based at the University of Pennsylvania, The Coun-
cist’s conscientious objection. NARAL has permanent on August 16, 2005—directly con-
characterized these conscientious objectors as tradicted an existing law, the “Illinois Health
“renegade pharmacists . . . refusing to fill safe, Care Right of Conscience Act,”9 which pro-
legal prescriptions for birth control” and insists vided broad conscience protection for health-
“pharmacies have a duty to dispense and have care workers in all healthcare settings. Vander
an ethical obligation not to endanger their pa- Bleek recognized that he could not, in good
tients [sic] health by withholding basic health- conscience, follow the Governor’s order and
care.”7 Clearly, these misrepresentations must would be forced to leave his life-long profes-
be confronted, and an accurate understanding sion as a pharmacist rather than “stock and dis-
of this national crisis of conscience must be pense products that [he] believe[d] to be harm-
brought to the forefront. ful to human life.” Risking his livelihood and
his reputation, Vander Bleek made the laudable
As the pressure mounts on pharmacists to con- decision to take a stand against the Governor’s
form to societal demands, certain individu- coercive order and, on June 8, 2005, filed a
als face the distressing decision of whether lawsuit challenging the Governor’s order.10
to abandon their careers or their convictions.
Pharmacists often risk dismissal or other disci- Luke Vander Bleek is just one of thousands
plinary action for standing up for their beliefs. of individuals who have been forced to make
Luke Vander Bleek, a pharmacist and pharma- similar decisions between following their con-
cy owner, faced exactly this situation. In 1997, sciences or maintaining their careers and pro-
Vander Bleek, with his wife Joan, became the tecting their families’ livelihood. Many phar-
owner of a small town pharmacy in Morrison, macists view their profession as one of healing
Illinois. Over the next seven years, Vander and oppose the use of medication to end hu-
Bleek opened or acquired three other pharma- man life. In Vander Bleek’s own words: “I
cies in small Illinois communities, providing have spent my entire profession in pharmacy
pharmaceutical services that would otherwise committed to easing suffering, curing, and di-
not be available in these underserved markets. agnosing disease, and improving the quality of
Vander Bleek established himself as a well- human life . . . . I will not practice in an en-
known, well-respected businessman who nev- vironment, [in] which we are legally obliged
er dispensed Plan B because of his conscience to be involved in the destruction of human
and religious faith. life.”11
In April 2005, then-Illinois Governor Rod Especially when society cannot reach a con-
Blagojevich jeopardized Vander Bleek’s ability sensus about the morality of a procedure, the
to continue offering his services in these small law must protect pharmacists whose deep mor-
towns. Blagojevich, through executive fiat and al convictions dictate they cannot participate in
without legislative approval, issued an emer- behavior that is harmful to human life. For the
gency Executive Order that required commu- conscientious objector, his or her moral, ethi-
nity pharmacies licensed in Illinois to procure cal, and religious convictions are not instru-
and dispense all forms of contraceptives “with- ments for solving problems but form part of his
out delay.”8 The Emergency Order—made or her identity and very self. Personal ethics
cannot be bifurcated from professional ethics. In order to protect the priceless rights of con-
Any law that forces pharmacists to act contrary science of pharmacists, state legislatures must
to their convictions and to suppress their con- become more proactive in passing meaningful
sciences imposes one set of value judgments legislation. Although 47 states allow physi-
over another. cians and other healthcare providers to refuse
to perform or participate in abortions,13 this
Opponents of freedom of conscience contend same protection is not widely granted to phar-
that a pharmacist’s right to conscientious ob- macists and pharmacy owners. Although ten
jection must be subor- states currently have
dinated to the needs of a law that protects
patients; however, con- pharmacists’ rights of
scientious objection does conscience to some
not prevent patients from degree,14 opponents of
obtaining contraceptives rights of conscience
from other sources. Just continue to agitate for
as the exercise of free- laws that would force a
dom of speech does not pharmacist to dispense
force others to agree with prescriptions despite
the speaker, the exercise his or her conscientious
of freedom of conscience objection.
does not force others to agree with an objec-
tor. Objectors act primarily to preserve their This alarming increase in efforts to compel
own moral integrity, not to block access to ser- conscience must be addressed and many states
vices or to punish or control patients.12 Their already have the tools to do so. Notabley, AUL
main concern is to avoid being implicated in has developed the “Pharmacists’ Freedom
what they understand to be an immoral act of Conscience Act,” which comprehensively
and, under the vast majority of circumstances, protects the conscience rights of individual
a patient who is denied a prescription from one pharmacists, pharmacies, and entities such as
pharmacist or pharmacy can conveniently ob- insurance companies that pay for prescription
tain it elsewhere. It is inappropriate to reduce drugs.
human persons to the status of tools or things
under any circumstance, but it is particularly Further, for example, some states offer protec-
reprehensible in the healthcare setting where tion for the healthcare rights of conscience of
healthcare professionals are so valuable be- public employees. These provisions explic-
cause of their knowledge and judgment. To itly provide that state or other public employ-
demand the sacrifice of individual religious ees cannot be required to participate in family
and personal rights of conscience in favor of planning or birth control services.15 In these
patient convenience not only demeans an indi- states, lawmakers only need to extend the pro-
vidual pharmacist but also the medical profes- tection given to public employees to pharma-
sion as a whole. cists who do not have the backing of state gov-
ernment. To adequately protect pharmacists
Endnotes
1
For an example of a pharmacists’ conscience objection result-
ing in the loss of employment, see Jo Mannies, “’Pill’ Dispute
Here Costs Pharmacist Her Job,” St. Louis Post-Dispatch, Jan.
27, 2006, A1.
2
410 U.S. 113 (1973).
3
Although Plan B is also commonly referred to as the “morning-
after pill,” such a description is misleading because the drug ac-
tually functions as an abortifacient.
4
“Access” is the frame promoted by pro-abortion groups. See
e.g. “Illinois Rules on Access,” Planned Parenthood of America,
available at: http://www.plannedparenthood.org/pp2/portal/
files/portal/media/pressreleases/pr-050816-pharmacist.xml (last
visited December 15, 2010).).
5
James Madison, “Memorial and Remonstrance Against Reli-
gious Assessments,” ¶ 15, reprinted in Everson v. Bd. of Ed., 330
U.S. 1, 65-66 (Rutledge, J., dissenting).
6
Susan C. Winckler, American Pharmacists Association, Vice
President for Policy Communications
7
Statements available at http://www.prochoiceamerica.org/as-
sets/files/Birth-Control-Pharmacy-Access.pdf (last visited Au-
gust 19, 2009).
8
68 Ill. Admin. Code § 1330.91 (2005)
9
745 Ill. Comp. Stat. Ann. 70/1 et seq. (2005)
10
On December 18, 2008, the Illinois Supreme Court reversed a
lower court’s dismissal of this case and return the case to the trial
court. The trial court has since entered an injunction prohibiting
the State from enforcing the rule while litigation continues.
11
Statements made before the United States House of Represen-
tatives’ Small Business Committee on July 25, 2005, available
at: http://wwwc.house.gov/smbiz/hearings/databaseDriven-
HearingsSystem/displayTestimony.asp?hearingIdDateFormat=0
50725&testimonyId=377 (last visited August 19, 2009).
12
For an exploration of some of the pharmacists’ motivation, see
Doug Moore, “Illinois Druggists Pledge to Defy Rule,” St. Louis
Post-Dispatch, Aug. 21, 2005, B1.
“The conflict between social pressure and the ferral to and payment for the controversial ser-
demands of conscience can lead to the dilemma vice and preparation of the patient prior to that
either of abandoning the medical profession or service.
of compromising one’s convictions… There is
a middle path… It is the path of conscientious As public opinion has shifted toward a more
objection, which ought to be respected by all, pro-life ethic, abortion advocates and, to a less-
especially legislators.” er extent, advocates of destructive and immoral
- Pope John Paul II, Rome (18 July 2001) research on human life at its earliest stages have
grown increasingly strident in their attempts to
Oklahoma re-enacted the Freedom of Con- Louisiana enacted a measure protecting both
science Act, a measure providing broad con- individual providers and healthcare institutions
science protections for individuals and insti- and permitting them to decline to participate in
tutions. The measure was originally passed in any healthcare service that violates their con-
2008, but later enjoined (for procedural rea- science.
sons) by a state court.
The Michigan Senate passed a resolution con-
Of the 27 measures considered, 22 (81%) were demning the professed intention of the Obama
protective measures. Twelve of these measures Administration, specifically the U.S. Depart-
sought to provide comprehensive protection ment of Health and Human Services (HHS),
for health care rights of conscience. Such ex- to rescind the conscience rules approved in
pansive measures were considered in Alabama, December 2008 by the Bush Administration.
Idaho, Oklahoma, Rhode Island, Tennessee, These rules seek to provide effective enforce-
and Washington. Meanwhile, other measures ment mechanisms for existing federal laws
considered in New York and North Carolina protecting conscience.
sought to provide conscience protection in
cases involving only abortion or contraception. Notably, Texas introduced a constitutional
amendment providing broad protection for
In a unique measure, North Carolina consid- conscience.
ered protections for insurance companies that
do not wish to cover contraceptive drugs. Abortion-Specific Protections
Alaska, Missouri, and West Virginia consid- At least ten states, including New York and
ered measures to specifically protect pharma- West Virginia, introduced measures protect-
cies and pharmacists. Conversely, California, ing the right of individual healthcare providers
New Jersey, New York, and Oklahoma specifi- and/or healthcare facilities to refuse to provide
cally targeted pharmacists, considering mea- or participate in abortions.
sures to compel them to fill prescriptions for
so-called “emergency contraception” and con- Arizona enacted a measure expanding its ex-
traceptive drugs. isting protection for conscience. The measure
permits individual providers, hospitals, and
Comprehensive Protection for hospital employees to decline to facilitate an
Freedom of Conscience abortion.
Montana, North Carolina, and West Virginia— the legislature considered an amendment to the
considered measures to specifically protect “Pharmacy Practice Act” prohibiting the State
pharmacists and pharmacies from being com- from expending any funds to enforce any rule
pelled to dispense or otherwise provide drugs that requires a person or pharmacy to dispense
and devices, specifically abortifacient drugs “emergency contraception.”
and contraceptives, which violate their con-
sciences.
Compulsion Measures