Proposed Conscience Regulation Reduces Healing to Treatment
Image by NIH Clinical Center.
By Vivian Tork
Objections raised by The National Catholic Bioethics Center, the National Association of Catholic Nurses, and the Catholic Medical Association (the authors) to proposed reductions to federal conscience protections for health care workers highlight a conflict over whether an “ethic of treatment” or an “ethic of healing” should direct medicine in the United States. On March 5, 2023, the authors submitted a public comment opposing certain aspects of “Safeguarding the Rights of Conscience as Protected by Federal Statutes,” a proposed change in federal regulation written by the US Department of Health and Human Services (HHS). (See discussion in the Winter 2022 “Washington Insider” column by Arina Grossu.) Although both the authors and HHS have a vested interest in the cultivation and preservation of health, their opposing views on the importance of health care workers’ consciences reveals a fundamental difference in their understanding of what health care is.
First, though, let us understand the contents of the public comment. The objections raised therein uncover a specific meaning of health care, which the authors seek to protect. Further, they identify what they see as a perverse understanding of health care through accounts of the actions of legislative bodies, courts, hospitals, and other health care organizations in the United States.
The thrust of the authors’ argument is that the proposed revisions to the 2019 Final Rule threaten to narrow the conscience protections afforded to health care workers. The 2023 Proposed Rule would protect fewer people and in fewer circumstances. For instance, under the 2019 Final Rule, “assisting in performance” of medical procedure meant “counseling, referral, training, or otherwise making arrangements for the procedure,” protecting health care workers from being complicit in procedures that they find immoral. Additionally, the definition of “health care provider” included pharmacists, psychologists, counselors, and technicians so that they could enjoy the same conscience protections. Lastly, the rule defined “health entity” so as to include sponsors that provide health insurance coverage. The 2023 Proposed Rule rescinds these clarifications, narrowing the conditions under which health care providers enjoy conscience protections. The interest of the authors is to encourage the broadest conscience protections possible. Their argument goes that when broad conscience protections are furnished, professional judgment is protected.
Why is the protection of professional judgment of such great importance to the mission of the authors? The most important means of cultivating the health of a patient is care for the value and human dignity of that person. Health care providers must treat their patients with care for their whole person. Treatments that attend only to the malady of the patient, isolated from his or her holistic well-being, do not participate in the work of healing, demonstrated in Jesus’s ministry. Treating a condition and bringing about healing in a human person are two very separate objectives. Though they may not be conscious of this difference, the legislative bodies, courts, and health care organizations that advocate for universal mandates enforcing procedures like abortion, sterilization, and euthanasia irrespective of the professional judgment of health care providers promote an ethic of treatment, not one of healing.
I recently attended a lecture during which a professor of mine told a story about a health clinic in India. A group of American missionaries staffed the clinic in a village there, where, among other tasks, they administered HIV medication to a group of young women. However, the condition of the women did not improve at the end of their prescribed course. The missionaries asked the women whether they had been taking the medication as directed. “No,” they replied, “there is no point. We will be raped again and end up in the same position.”
It became clear to the missionaries that these women had no interest in curing their HIV, because even they knew that it would not heal their deeper pathology—hopelessness. So the missionaries began a weekly small group to minister to the women, sharing the good news and hope of the Gospel with them. Over time, the disposition of the women began to shift. Eventually, they finished their medication and achieved not only remission from HIV, but hope. Their healing was brought about only in part by the medication they took—the real work of healing came from the interest of the missionaries in the restoration of their God-given dignity and value.
Now, the interest of HHS in the 2023 Proposed Rule is to balance the rights of the patient and the conscience protections of health care providers. One objection that the authors respond to in their letter is that health care providers should not be able to withhold information about certain treatment options from a patient just because they personally find them morally objectionable. The proponents of these narrowing changes argue that in doing this, health care providers infringe on the right of their patients to obtain informed consent. However, there is no clause in the 2019 Final Rule which prohibits a patient from seeking out a second opinion on their course of treatment from a health care provider who may hold different religious or moral convictions than their first provider. In fact, it is widely considered prudent for a patient to seek out a second opinion prior to consenting to a particular treatment plan. What is prohibited, though, is forcing health care providers to perform or to counsel a patient to pursue treatment plans that violate their consciences.
The authors seek to empower health care providers to do much the same as those missionaries in India. They are encouraged to attend to the spiritual well-being of both themselves and their patients. Being forced to recommend or perform procedures which go against the religious or moral convictions of the health care provider brings about lower-quality health care, in the sense that health care ought to attend first to the preservation of a patient’s dignity and holistic well-being. What physician could say that he had contributed to the well-being of his patients after advising them to participate in something he viewed as a grave evil? Participation in the evil that goes under the guise of “health care” is no health care at all. As the authors state in their letter, “Persons willing to violate their own consciences in the delivery of health care, which this Proposed Rule would require, cannot be relied upon to provide ethically driven care.”
Vivian Tork is studying history and biology at Hillsdale College and is an undergraduate fellow at The National Catholic Bioethics Center.