The Conscience Clause

Buzzfeed News is reporting that New York State is suing the Trump administration over a new “conscience clause” rule that would protect health care workers who refuse to participate in medical procedures for moral or religious reasons.

Two dozen Democratic-led states, counties, and cities sued on Tuesday to overturn a new Trump administration rule that would protect health care workers who refuse medical procedures — like abortion, assisted suicide, or sex reassignment surgery — if it violates their “conscience.”

An 80-page complaint in federal court in Manhattan argues the policy could have dire effects for patients, particularly low-income people of color, women, and LGBT people who disproportionately rely on government-backed health care systems.

The conscience clause sounds pretty innocuous. After all, we don’t want to be forcing people to violate their religious beliefs whenever they go to work. Let’s take a closer look, though. I think we’ll find that things are far more complicated than they seem.

One of the main concerns is that healthcare workers will have to participate in abortions. Elective abortions are done exclusively in abortion clinics, so that should not be an issue. Abortions done in hospitals are always done for one of the exclusionary clauses in the abortion laws, such as to save the life or health of the mother, with which most people agree. For example, a woman comes into the hospital at 18 weeks of pregnancy because her water has broken and now she has signs of infection. The only treatment at that point is to end the pregnancy. Health care workers may not like the fact that they have to participate in a pregnancy termination, but they are involved in saving the mother’s life. The fetus was never going to survive, but the mother can.

The article gives an example of a ruptured ectopic pregnancy, suggesting that in such an emergency, many health care workers could refuse to participate in the care of a woman with such a condition with impunity under the “conscience clause”. In an ectopic pregnancy, the pregnancy has developed outside of the uterus, usually in the fallopian tube. If the pregnancy has ruptured into the abdominal cavity, it is a surgical emergency that requires immediate attention to save the mother’s life. In both of these cases, some health care workers have conscience issues about taking a non-viable, already doomed fetal life to save a maternal life.

Some health care workers are concerned about having to dispense contraception or emergency contraception, particularly to teens. This is tied to another issue, participation in transition surgeries for trans people. These don’t seem related, but they turn on the issue of intent. When a pharmacist or other person involved in medications claims an objection to contraception, it is usually because they assume that the oral contraception pills (OCPs) are being used for contraception, which they oppose on moral grounds. But this is not always the case. OCPs can be used to treat amenorrhea, polycystic ovary disease, acne, and other things. The physician and patient are the ones responsible for making the decision about what medication they are going to use and why. Health care workers down the line have different responsibilities, and those are not to interrogate the patient’s motives.

The issue of surgical intent is similar. A woman and a trans man may both come in for bilateral mastectomy. The surgical procedure is the same. The surgeon has obtained informed consent for each one and has discussed all the issues involved. It is not up to the rest of the health care team to decide whether or not the motive behind the surgery is acceptable to them or not. It is the exact same surgery. In the two cases above, under the conscience clause, a healthcare worker would be able to screen each case in which they participate to determine if the intent was “acceptable” to them. The above two cases are extreme, but you could see OR nurses refusing to participate in plastic surgeries because they are “vanity” or pharmacists refusing to give HIV prevention medication because “people should just stop having sex or doing drugs”. The entire process of providing healthcare would become a disaster.

This rule would also unfairly impact rural clinics and hospitals. With limited providers, a clinic that takes federal dollars must be willing to see all patients. A competent family physician can provide general care to a trans patient, even if they aren’t qualified to manage their hormone treatments. And, this rule would not require health care providers to try to provide care for which they aren’t qualified (like hormone treatment for trans people), just equal care to all comers. There's no reason that providers can't provide the same care to LGBTQ+ people that they provide to everyone else.

The California Attorney General has also filed a lawsuit claiming that the rule elevates some religious beliefs over others, creating a First Amendment violation:

James, Becerra, and other plaintiffs contend the rule violates the Administrative Procedure Act because it is arbitrary, capricious, and an abuse of discretion. They add the rule violates the Spending Clause, which says states cannot be financially coerced into adopting preferred federal policies, while elevating certain religious beliefs above others in violation of the Establishment Clause of the First Amendment.

Whatever a person’s religious beliefs, they should not hinder the work that they are doing. If a person believes that they cannot reasonably do the work that a job entails, then they need to find employment elsewhere.

This rule would endanger the health and lives of people who rely on any kind of federally funded health care or facilities that accept federal funds (most facilities). We need to oppose this kind of rule and expect that our citizens of color, women, and LGBTQ+ citizens all receive appropriate and timely care without question. The “conscience clause” doesn’t have a conscience.

Catherine