The Obama administration will soon face a decision, bound to be controversial, on how to balance two important principles: freedom of conscience for healthcare workers versus unfettered access to healthcare, especially reproductive services.
Should physicians, for instance, be able to decline to provide birth control services, without referring patients to other providers? Can an emergency-room doctor who believes that emergency contraception is morally wrong refuse to tell a rape victim that it is available?
In its 11th hour, the Bush administration last December issued a "conscience rule" to protect healthcare providers who decline to participate in services they find morally objectionable, such as abortion. That regulation would cut off federal funding to state and local governments, hospitals, clinics, and other entities that fail to accommodate workers' beliefs.
The Obama administration announced its intent to rescind the rule, but it is seeking public comment by April 9 before making a final decision. President Obama has pledged to seek common ground on contentious "life" issues.
Several federal laws have been passed since the 1970s to protect conscientious objection in healthcare, but women's health advocates and other groups say the new rule goes beyond the laws in ways that could limit access to services and endanger women's health. The attorneys general of seven states also filed suit to block its implementation.
Religious conservatives, in turn, insist the rule is essential because healthcare workers, they say, are increasingly pressured, penalized, or fired for exercising their conscience right.
The Christian Medical and Dental Associations (CMDA) highlights examples on their website, including doctors who say they were forced out or had to resign from jobs because they refused to give contraceptives to unmarried women, or to refer patients to others for abortions.
"The need for those protections just keeps getting bigger and bigger," says Richard Doerflinger, spokesman on pro-life matters for the US Conference of Catholic Bishops. The rule was overdue, he says, since no regulation had been written to implement the laws on the books.
The "immediate forcing event" for the rule, he adds, was a policy issued by the American College of Obstetricians and Gynecologists saying that doctors who refuse to provide reproductive services had a duty to refer patients to other providers or to locate their practices close to doctors who do provide them.
"Referral is more than information, it's helping people get an abortion," says Mr. Doerflinger. "In our teaching, if you are putting them on the train, you are involved – the moral problem is not solved."
Was Bush rule too broad?
On the other side, family-planning proponents say that without referrals, patients can't access care and information on health options easily.
The original laws focused on abortion, but Bush's regulation, "by not defining abortion and basically allowing individuals' beliefs about what constitutes abortion to take precedence," opens the door for providers opposed to contraceptives to include birth control, says Gretchen Borchelt, senior counsel for the National Women's Law Center (NWLC).
Low-income women particularly could be affected, many say.
When seven states sued in January to block the rule, Illinois Attorney General Lisa Madigan told the Chicago Tribune, "If enforced, this regulation will disparately impact low-income, uninsured, and under-insured women who rely on [family planning] programs for their health information and services."
The states challenge the legality of the rule because it fails to define the services and procedures that would be affected, and it may undermine state laws that ensure access to essential medical care, including reproductive services.
Many people see the rule having implications for services in areas such as HIV drugs, infertility, sexually transmitted diseases, blood transfusions, and end-of-life care, as well as scientific research.
"Americans are sensitive to religious freedom, but polls show that some 80 percent say women should have access to birth control with a valid prescription."
A 2007 poll by Lake Research, a public opinion research firm, found that 80 percent of US adults say birth control should be accessible and that it should be dispensed by pharmacists "without discrimination or delay."
In a different but related matter, a federal judge on Monday criticized the Food and Drug Administration for bowing to political pressure from the Bush administration in 2006 when it limited distribution of the morning-after pill called Plan B to women over 18, and ordered the agency to make it available to women as young as 17. Conservatives object that teens could get the drug without a prescription or guidance.
Balancing competing rights
Though freedom of conscience is a basic American principle, most people recognize that no right is absolute. The questions is: How far do providers' rights extend, and how are they balanced with the rights of patients? This issue seems particularly clear in emergency care.
The NWLC says the Bush rule fails to adequately address the legal obligation to provide medical care in an emergency, or the patient's right to "informed consent."
In a case highlighted by CMDA as improper pressure on a doctor, a Texas physician who examined rape victims objected to the hospital requirement that the patient be given an emergency contraceptive. She refused to do so – and refused to call in another physician, saying that since the contraceptive was morally wrong, calling in someone else was just as wrong.
The doctor complained that she was threatened with possible firing.
In that case, "for a provider to say I can't do that because it violates my conscience seems appropriate; for them to prevent anybody else from being called in seems more questionable, but the matter should be considered," says David Gushee, professor of Christian ethics at Mercer University in Atlanta.
For an administration bent on finding common ground, the option seems to be to create a new set of modified regulations. Administration officials declined to comment on their plans.
They could face a prickly process, which might involve not only bringing the contending sides together, but defining that explosive term – abortion – not yet defined anywhere in federal law.