Protection of Conscience Project
Protection of Conscience Project
Service, not Servitude

Service, not Servitude

United States

Catholic Health Association of the United States

Conscience Clause Legislation: A Position Paper

November, 1996

In order to follow religious dictates and retain their identity as "Catholic," Catholic health care institutions must comply with the Ethical and Religious Directives for Health Care Services. The Directives' purpose is twofold: "first, to reaffirm the ethical standards of behavior in health care that flow from the church's teaching about the dignity of the human person: second, to provide authoritative guidance on certain moral issues that face Catholic health care today."

The Directives provide guidance on a wide array of issues relevant to health care providers, including the "professional patient relationship," "issues in care for the beginning of life," "issues in care for the dying", and "forming new partnerships with health care organizations and providers." In order for Catholic providers and plans to continue their health ministry, state and federal law must not impose burdens which require providers to choose between the dictates of the Catholic religion and the law.

Governments can demonstrate this respect for religious freedom in one of two ways: 1) refraining from passing laws that conflict with Catholic ethical and moral teaching; or 2) in passing such laws, respecting the freedom, of Catholic providers to remain faithful to their religion.

Since the first option is regrettably unachievable, Catholic providers are forced to rely on the second. These provisions protecting the rights of religious conscience are generally called conscience clauses. Unfortunately, neither states nor the federal government has provided the level of protection for conscience required in a health care system marked by extraordinary change. The conscience clauses presently in law usually fail to adapt both to changes in technology and to institutional and social innovations.

The United States has a patchwork of statutory protections for the conscience rights of health care providers. Forty-four states and The United States presently have some kind of statutory conscience clause protection. Most conscience clause statutes protect the right of an individual or a hospital to refuse to participate in one or two specific procedures. The reason for such narrowly focused conscience clauses is that many of them were adopted between 1973 and 1982. The federal courts recently had defined a federal constitutional right to privacy which they believed included constitutional protection for contraception and abortion. The conscience clauses often do not even deal with emerging ethical issues, like those related to physician-assisted suicide, fertility treatments and medical experimentation. As the range of medical technologies continues to expand, the number of medical services involving potentially serious conflicts of conscience is certain to increase.

If conscience protections do not apply to institutions, and in some states they do not, most state statues limit coverage to "hospitals." In fact, in twelve States the institutional conscience clause apples only to hospitals. Thus, as Catholic health care entities expand into managed care and form their own provider sponsored networks and managed care plans, CHA members will face the difficult issue of whether these entities are protected by existing conscience clauses. If not, each system, plan or PSN will have to make the difficult calculus of whether to seek amendments to state conscience clauses in order to insure protection for its facilities.

In 1996, federal law has inadequate and incomplete conscience clause protection for religious providers. The "Church Amendment," passed in 1973, does not permit any public authority from conditioning the receipt of federal funds under the Public Health service Act, the Community Mental Health Centers Act, or the Developmental Disabilities Services and Facilities Construction Act on an individual or entity's willingness to perform, or not perform, abortion or sterilization. The act was later amended to protect the conscience rights of individuals in any program or research activity funded by the Secretary of Health and Human Services.

The Church Amendment is not the only institutional conscience clause contained in federal law. Like most state legislatures Congress responds to crises as they occur. When religious hospitals believed they had to choose between their objection to abortion and their mission to serve the poor through the Medicaid program, Congress passed the "Hyde Amendment." This statutory protection insures that federal funds are not used to support the performance of abortions. Just this year, Congress nullified an effort by the Accreditation Council on Graduate Medical Education to make training in Induced abortion mandatory for OB/GYN residents. In 1993, Congress passed the Religious Freedom Restoration Act in response to a Supreme Court decision perceived as lessening constitutional protection for religious entities. This law provides a right of action against governments perceived as burdening the free exercise of religion.

These statutory provisions are uneven and create a patchwork of protection. Some apply to a number of procedures, others only to abortion. Some apply to institution and individuals, others only to individuals. Some provide substantive protection, others only a legal cause of action. They are responses to perceived threats rather than a well-designed provision to protect the religious freedom of providers and plans.

Just last Congress, CHA again was forced to respond to proposed legislation by seeking a conscience clause. The American Medical Association advocated for legislation which sought to prohibit managed care plans from impeding communication between physicians and patients regarding treatment options. The AMA was responding to provisions in managed care contracts seeking to limit a physician's medical communication to those options on the plan's practice protocols. Unfortunately, the bill's unnecessarily broad drafting had the unintended impact of forcing Catholic managed care plans to choose between complying with the Ethical and Religious Directives and the provisions of the legislation. For instance, the Ethical and Religious Directives require Catholic plans to prevent physicians from aiding in the suicide of a patient or from advising patients about the use of physicians-assisted suicide. The AMA-sponsored legislation did not become law. Our effort to obtain a conscience clause was not immediately successful, and the issue is certain to return in the next Congress. In addition, CHA supports a recently-initiated legislation effort by Senators Ashcroft and Dorgan to insure that federal funds are not spent on physician-assisted suicide.

Rather than respond to each crisis as it occurs on an ad-hoc basis, however, CHA proposes to work with members' ethicists, attorneys, sponsors, physicians, administrators, executives and with the United States Catholic Conference on drafting and proposing a flexible, resilient federal conscience clause. Our intent would be to protect the religious freedom of Catholic sponsors, systems, providers, plans and provider sponsored organizations to serve faithfully our health care mission. Our intent would not be to impede the right of government to pass otherwise applicable legislation, binding on those without religious objection. CHA would then locate sponsors in the House of Representatives and the Senate to begin the arduous process of passing our proposed legislation into law.

Until CHA succeeds in persuading Congress to pass comprehensive protection for the religious freedom of health care providers, we will remain vigilant in discerning issues that implicate our members' ability to serve faithfully their health care mission, rooted in the words and actions of Christ and the Church.