Editor’s Note: Casualties of the Culture War

November 1, 2008

HHS has proposed substantial changes to federal conscience laws that protect providers’ rights to recuse themselves from participating in abortion-related services. What does this mean to your practice? Should you worry?

“But if the time should ever come … when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do likewise.”

- John F. Kennedy, 1960

As the second Roman Catholic ever nominated by a major party for the presidency of the United States, Kennedy spoke those words in response to the question on everyone’s mind: To whom would a President Kennedy owe primary allegiance? The American people? Or the Vatican? Forced to choose between his conscience and the job, he said, he would quit.

Kennedy’s words echo today as an eloquent counterpoint to our generation’s childish preference to assert our “rights” rather than accept our realities and live with our choices. The latest example: Health and Human Services Secretary Mike Leavitt’s recent discovery of your employees’ right to undermine your practice by refusing to do their jobs if doing so would offend their moral sensibility.

Unsatisfied with the long-established “right of conscience” of healthcare workers to opt out of providing services like abortion without retribution by hospitals or states - a right protected in various federal laws since the 1970s - Leavitt is proposing regulations that go much further. They would grant staff virtually unlimited power to hobble the normal operations of ordinary practices, under the guise of their “right” to decline to be involved practices they deem morally repugnant.

The new regulations would cover every entity that accepts Medicare or Medicaid, including (most likely) your practice. The breathtakingly broad language would “protect” not only doctors and nurses but other clinical assistants and even administrative staff - indeed, everyone who works in your office.

The services in question need not be abortion-related. Far from it. The rules would cover referrals, counseling, the prescribing of contraceptives - you name it. And everything from checking vitals to scheduling the patient’s appointment to pharmacists’ filling your prescriptions could be considered part of “the service” to which anyone might object.

The language states that the rules apply to anyone who participates in “any activity with a logical connection to a procedure [or] health service … This includes referral, training and other arrangements of the procedure, health service, or research activity.” Anyone? Any activity? Including “other arrangements”?

Can a medical assistant refuse to check the blood pressure of a patient whose visit is partly to discuss birth control? Can your front-desk staffer decline to schedule a pregnant teen who wants to come see you to discuss her options, or a longtime patient who needs a Plan B prescription? Can your check-out clerk refuse to provide a referral to an urologist to consult on a vasectomy?

HHS is being intentionally vague on questions like these - but apparently, yes, on all counts. The American College of Obstetricians and Gynecologists warns that “personal beliefs of pharmacists, schedulers, even volunteers and custodians could influence the information patients receive or stop patient care.”

No wonder Equal Employment Opportunity Commissioners have come out against it, saying it would lead to “profound confusion and extensive litigation.” You think?

HHS is also not saying when it will decide on its final regulations - it hadn’t acted as of this writing - but you can be sure it will do so before the clock runs out on the current administration. Leavitt can act unilaterally. He need not hold hearings or gain Congressional authority - and most likely, he won’t bother.

There’s already too much overheated rhetoric in America’s battles over religion and social issues; I’m not jumping into that fray. But this is a business issue, and at its heart is a simple question: Should garden-variety primary-care practices’ ability to provide commonplace family-planning and counseling services become the latest casualty in the culture wars?

No one should be dragooned unwillingly into providing an abortion. Of course not. Under existing law, no one is. But these regulations go acres too far. Patients will be harmed.

Bob Keaveney is the executive editor of Physicians Practice. Tell him what you think at bkeaveney@physicianspractice.com.

This article originally appeared in the November 2008 issue of Physicians Practice.