The Limits to Conscience
January 22, 2018
by Bonnie Steinbock, PhD, Professor of Bioethics, The Bioethics Program of Clarkson University and the Icahn School of Medicine at Mount Sinai
Last week the Trump administration created a new entity within the Department of Health and Human Services (DHHS) called the Conscience and Religious Freedom Division. It was one of several steps the President has taken recently to expand religious freedom protections for health care workers who object to performing procedures like abortion and gender reassignment surgery.
Critics regard its creation as a major civil rights rollback. NARAL Pro-Choice America, a non-profit organization that advocates for continued access to abortion and family planning services in the US, tweeted, "Despite the name, this division isn’t *actually* here to enforce religious freedom—it's designed to protect healthcare providers who want to discriminate against women & LGBTQ [lesbian, gay, bisexual, transgender, and queer] people."
Politically, these steps may be regarded as part of the Trump administration's attempt to undo virtually all of President Obama's initiatives, such as protecting Dreamers (undocumented immigrants brought to the U.S. as children), expanding national parks, and combating climate change. Expanding religious freedom protections can also be seen as one more way the pro-life movement, frustrated in its attempt to get Roe v. Wade overturned, has sought to restrict access to abortion.
A spokeswoman for DHHS says that the new division is "part of the Trump administration's commitment to rolling back regulations the Obama administration put out to radically favor abortion." This is inaccurate. President Obama reined in the freedom of conscience protections enacted by President George W. Bush in the last days of his administration in 2008. The Bush rules had been so broadly written that they could be used to protect, for example, a refusal to treat AIDS patients or to prescribe contraceptives to single women. Moreover, the rules did not apply only to doctors and nurses, but also receptionists and medical technicians. "Basically, anybody could throw a cog into the wheel of providing any kind of health care."
Rather than "radically favoring abortion," the Obama regulations returned to the original intent of conscience clauses, which were restricted to abortion.
That raises two questions. First, should there be conscience clauses in medicine at all? Second, is there any principled way to restrict them?
Some have argued that there is no place for conscientious refusal in medicine. Healthcare practitioners should be required to perform any standard medical procedures requested by patients. If they have moral or religious objections to certain procedures, they should avoid fields that might pose conflicts of conscience.
This approach is discriminatory in its suggestion that Catholics should not enter the field of obstetrics, and gives too little importance to freedom of conscience. Because conscience is intimately connected with the value of moral integrity, it deserves respect. The right to have an abortion, or get aid-in-dying (in states where it is legal), does not imply a right against all providers to participate in these procedures.
It is hard to see why a nurse with pro-life convictions should be forced to assist in the abortion of a 22-week fetus, as happened in the case of Cathy DeCarlo, a nurse at Mount Sinai Hospital in New York. Was there really no one else who could have assisted in her place?
Instead of simply scrapping freedom of conscience, we should recognize that it is not the only value, and can be limited by obligations to patients. This can be done by referral where possible. However, recommendations issued by the American College of Obstetricians and Gynecologists specify that, "In an emergency in which referral is not possible or might negatively affect a patient's physical or mental health, providers have an obligation to provide medically indicated and requested care regardless of the provider's personal moral objections."
This means that doctors and nurses with sincere moral objections to abortion should not be forced or pressured to perform or assist in them -- so long as there are other individuals who can take their place. If there aren't, or there isn't time to shift the patient to another facility, the health of the patient must be paramount. Claims of conscience cannot put patients' lives or health at risk.
This nearly happened in 2010, when a gravely ill patient in her 11th week of pregnancy entered Saint Joseph Hospital and Medical Center in Phoenix, Arizona. Doctors placed her chances of dying if the pregnancy continued at nearly 100 percent. She was too ill to be moved to another facility, and she agreed to have an abortion.
As a Catholic hospital, Saint Joseph did not perform abortions, not even when the life of the woman was at stake. Fortunately, a courageous administrator, Sister Margaret McBride, approved the procedure, and the woman's life was saved. For her pains, the Bishop of the Diocese excommunicated McBride (although this was later lifted) and the Diocese severed its affiliation with the hospital.
This should never have happened. No institution or individual should be permitted to sacrifice the lives and health of patients on the altar of religious freedom. The danger of the new division is that, in the name of protecting conscience and religious liberty, it will do precisely this.
 Jeremy W. Peters, "President Reaches Out to Foes of Abortion," The New York Times, Jan. 20, 2017, A17.