1. Sofer, Dalia


When do a clinician's rights deny those of the patient?


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The U.S. Department of Health and Human Services (HHS) announced in January the formation of a Conscience and Religious Freedom Division to "vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom" for health care workers.

Figure. HHS Office f... - Click to enlarge in new window HHS Office for Civil Rights director Roger Severino announces a new Conscience and Religious Freedom Division on January 18 in Washington, DC. Photo (C) HHS Photos / Alamy Stock Photo.

The new division, part of the department's Office for Civil Rights (OCR), is charged with enforcing laws that have existed since the landmark 1973 abortion rights case, Roe v. Wade. They include the Church Amendments (1973), which protect individuals and organizations refusing on religious or moral grounds to participate in abortions and sterilization procedures (also protected are those who choose to participate); the Coats-Snowe Amendment (1996), which shields students and institutions opting out of abortion training; the Weldon Amendment (2004), which withholds federal funds from organizations that discriminate against individuals or entities refusing to perform, pay for, or offer referrals for abortions; and Section 1553 of the Affordable Care Act (2010), which protects people or entities refusing to participate in assisted death.


In announcing the new division, OCR director Roger Severino offered this explanation for its creation: "We are institutionalizing a change in the culture of government" to emphasize protection of religious freedom. Highlighting his own awakening to the notion of conscience, he cited, among other influences, a childhood memory of a book documenting Nazi persecution of Jews. Severino's analogy inflamed the Anti-Defamation League, which in a statement called the new HHS division an "unnecessary unit," and said that "to draw a moral equivalence between health care professionals who may object to providing critically needed services based on their own religion and the systemic murder of Jews by the Nazis is beyond the pale."


National Nurses United likewise questioned the necessity of the new division and cited concerns over the denial of care to vulnerable people, including lesbian, gay, bisexual, transgender, and questioning patients and women who might medically need to terminate pregnancy. The response of the American Nurses Association (ANA) was essentially a summary of the ANA's code of ethics, which articulates a "duty to care" while acknowledging nurses' rights to refuse to participate in what they consider "morally objectionable" procedures.


According to Nancy Berlinger, PhD, a research scholar at the Hastings Center in Garrison, New York, clinicians must balance issues of conscience against their ethical and professional obligation to provide care. They must also be mindful of the impact of their refusal on colleagues so as not to hinder patients' access to care. "You can't keep your objection a secret," she told AJN. "You have to let it be known, and not at the last minute." Finally, Berlinger noted that discussions about conscientious objection tend to focus on "the rights of the refuser," she said. "But what about the rights of the person who believes, for example, that everyone should have health care through such programs as Medicaid? Conscientious objection isn't only about the right to say no."


Buttressing the new division is a proposed regulation that, if passed, would ensure that the "OCR will have the authority to initiate compliance reviews, conduct investigations, supervise and coordinate compliance[horizontal ellipsis] and use enforcement tools." In his comments at the announcement ceremony, Severino described HHS's emphasis on conscience and religious freedom as a new "tone," in contrast to dismissive attitudes he noted earlier in his federal law enforcement career. "Times are changing," he said.-Dalia Sofer