A Bad Rule

by hilzoy

From the Washington Post:

"The Bush administration yesterday granted sweeping new protections to health workers who refuse to provide care that violates their personal beliefs, setting off an intense battle over opponents' plans to try to repeal the controversial measure. (...)

The far-reaching regulation cuts off federal funding for any state or local government, hospital, health plan, clinic or other entity that does not accommodate doctors, nurses, pharmacists and other employees who refuse to participate in care they find ethically, morally or religiously objectionable. It was sought by conservative groups, abortion opponents and others to safeguard workers from being fired, disciplined or penalized in other ways.

The rule (pdf) covers not just employees who refuse to perform a medical procedure they find objectionable, but to those who refuse to refer people to others who do provide such services. It would, for instance, protect people who not only refuse to perform abortions themselves, but who refuse to tell their patients who else might provide one, where to get the morning-after pill, etc. (See p. 106.) And as the Post notes, it would prevent organizations whose mission is to provide a small set of services from "discriminating against" people who refuse to perform those very services. (E.g., Planned Parenthood can not "discriminate against" people who object to providing contraception, even though providing contraception is 38% of their services delivered.)

This is a wonderful rule for slackers, since it provides a legally protected way to get paid while doing no work at all. Here's the plan:

(1) Get an MD, and a job as a doctor.
(2) Become a Christian Scientist.
(3) Announce your religious objection to participating in any medical procedure, or to supporting such procedures in any way (e.g., by doing the other doctors' paperwork. This refusal would be protected under the rule.)
(4) When your employer protests, explain that your right to refuse to participate in any medical procedure at all is legally protected under this rule.

Voila: white-collar welfare! See how easy?

Seriously: I am all for employers trying to accommodate their employees' religious convictions, when they can do so without compromising (in the case of medical employers) either the care they provide or the interests of their patients. Thus, if one of thirty Ob/Gyns in a large hospital believed that it would be wrong for her to perform abortions, I think it would be great for that hospital to arrange for other doctors to perform any abortions that were required, while asking her to take up the slack in some other way.

But the qualification "when they can do so without compromising either the care they provide or the interests of their patients" is crucial. And there are very clear limits to this, limits that this rule does not respect. My imaginary Christian Scientist doctor was meant to point that out. But the idea that it should be illegal for Planned Parenthood clinics to take someone's willingness to offer contraceptive services into account in hiring decisions is almost as absurd as saying that they should not be able to take into account that person's being a Christian Scientist.

Moreover, being unwilling to refer patients to (for example) providers of abortion or contraception always compromises the interests of patients. Doctors are supposed to explain patients' alternatives to them, and to provide the relevant referrals. They are not supposed to mention only that subset of those alternatives that they approve of on non-medical grounds -- grounds their patient might or might not agree with. The decision whether or not to have an abortion, to go on the pill, etc., is the patient's, not the doctor's. Keeping patients in the dark about those alternatives, or refusing to tell them how to obtain them, is paternalistic, and it's wrong. If a doctor doesn't want to provide such referrals, she should have gone into ophthalmology.

It's an odious rule. Luckily, I don't think it will last very long.

Comments

[shirt]

It's a great rule, so great I think it should be extended to our armed forces.

I just can't wait for a skinhead to make the claim it's against his religious beliefs to treat jews or a KKKer with what he perceives to be a non-person.

My favorite scenario? This bush baby requesting medical aid after falling off his bicycle is refused because the medical staff does not believe in treating assholes!

JBFC!

[BigHank53]

It's another flaming bag of dog turds left on the porch for the Obama administration. They could have passed this way back in November (the sixty-day rule) and made it harder to repeal, if they wanted to be nasty about it. But all they really want is to be able to to put the words "democrats" and "abortion" together in a press release before February.

[Matt12]

This is the Bush Administration's equivalent of ripping all the W's off the keyboard. Only this is, y'know, actually real and not made up.

Bush didn't expend any political capital trying to push this through at any time in the past eight years. He and the people around him don't believe in any of this crap. The point isn't to make this rule a permanent part of the law. The point is that they will just be able to slag Obama as an "infanticidal" stooge of the "secular left" when he correctly reverses these rules.

Their cynicism knows no depths.

[d'd'd'dave]

My daughter, wife, two sisters-in-law, mother-in-law, and cousin are all nurses. They have all avoided the OBGYN wards for the specific reason that they didn't want to be involved in abortions. My wife is pro-choice. I'm not sure of the rest of them. It's one thing to accept that you have a right to kill your baby and another to participate.

I'm sure there are plenty of progressives who are nurses to fill up the OBGYN jobs.

[Mike Schilling]

Is it only health workers? I have strong moral objections to writing anything in COBOL.

[Suzii]

So if I get a job in billing, can I let my conscience be my guide about what's moral to charge patients?

[John Thullen]

What if my doctor insists on pointing out the mote in my eye but refuses to remove it on religious grounds or because Medicare or Medicaid cut the reimbursement rates.

What if it gets infected and becomes a beam in my eye? Or is that the point of religious scruples ... to dwell on the motes but not to do anything about them except complain and nag until the motes become as large as the beams in the choosy doctors' eyes.

What if I, the patient, have religious scruples too and I find some tools and fashion a club from the beam in my eye and I take a whack at the beam in the doctor's eye, thus damaging his eye in kind.

Is that not an eye for an eye? Would the doctor mind, an eye for an eye being one of those religious rules.

What if I demand not only an eye, but his Mercedes coup in the parking garage? Is that not an eye and a Mercedes coup for an eye?

What if I, the doctor, find out half through a colonoscopy that the patient is a Jimmy Swaggert acolyte? Should I halt the procedure mid-colon and leave the probe inside the patient and cease and desist on religious principles? Or, should I have the patient removed to an operating room for emergency brain surgery to locate their single,lonely brain cell and transplant that brain cell into the brain of a flea so that the flea shall enjoy the fruitflies of stupidity as well?

What if an infant boy is being circumcised against his religious scruples and thinks to ask: "So, you thought enough of me and the sanctity of my life that you brought me to term (thank you), but you don't extend the same privilege to my foreskin?"

What if Jesus climbed down from the Cross and sought medical care for assorted puncture wounds and thorn rashes and the doctors in town said sorry, we have different religious sruples than yours?

Wait ... that last did happen,

See, if you ask enough questions, you'll find that silliness was discovered a long time ago.

[russell]

They have all avoided the OBGYN wards for the specific reason that they didn't want to be involved in abortions.

That's a perfectly reasonable thing for them to do.

I know an herbalist and some midwives, same deal.

Conversely, if I were running an OB/GYN practice where abortions *were* performed, it would be reasonable for me to not hire your wife, daughter, sisters-in-law, etc, nor my herbalist or midwife friends.

Also, were they to arrive at their position of conscience while in my employ, and it was impossible for other people in my practice to perform abortions or other services they found unacceptable, it might be time for they and I to part ways.

Ideally, you can find an arrangement that works for everyone. Sometimes you can't.

And sometimes there is a cost to respecting your own conscience.

Thanks -

[Gary Farber]

I wrote my post about this yesterday.

[Glaivester]

My feeling is that private hospitals, pharmacies, etc., ought to be able to set their rules for what procedures they will perform, and their employees should agree or else find work elsewhere.

However, I do believe on the other hand that government should not force people to participate in procedures that they find morally objectionable.

Therefore, if I don't want to provide either abortions or referrals to someone who provides abortions, my employer should be able to fire me. But the government shouldn't be able to sanction me.

The decision whether or not to have an abortion, to go on the pill, etc., is the patient's, not the doctor's. Keeping patients in the dark about those alternatives, or refusing to tell them how to obtain them, is paternalistic, and it's wrong. If a doctor doesn't want to provide such referrals, she should have gone into ophthalmology.

So in other words, you think that a true pro-lifer should not be allowed to become an OB-GYN. I cannot agree with you there.

One other thought:The far-reaching regulation cuts off federal funding for any state or local government, hospital, health plan, clinic or other entity that does not accommodate doctors, nurses, pharmacists and other employees who refuse to participate in care they find ethically, morally or religiously objectionable.

And sometimes there is a cost to respecting your own conscience.

Perhaps some of that cost could be rejecting federal funding so that you can run your hospital as you wish, and fire whom you wish.

[Gary Farber]

"However, I do believe on the other hand that government should not force people to participate in procedures that they find morally objectionable."

No one forces anyone to be a pharmacist, nurse, doctor, etc.

"Therefore, if I don't want to provide either abortions or referrals to someone who provides abortions, my employer should be able to fire me. But the government shouldn't be able to sanction me."

That seems reasonable at first glance, but government regulates all sorts of other requirements on doctors and pharmacists -- I won't be at all surprised if you object to that, as well -- and we do get into all sorts of actual trouble that would hurt countless actual people, if one of those regulations isn't that you have to give people whatever legal treatment they need or, or whatever medicines they are legitimately prescribed. So while your position is within reason, I can't not think that actually hurting thousands, tens of thousands, of real people, including women who already have to travel hundreds of, or even more than a thousand, miles, to get a legal medical procedure, or who have to travel for hours to get prescriptions or medical devices they require, should take precedence over theoretical rights to be discriminatory.

It's one of those basic liberal vs. libertarian arguments, of course. (Probably you also believe in the right to discriminate in jobs and housing and accommodation by all manner of individual choice, including "race," ethnicity, gender, age, sexual orientation, religion, etc.?)

"So in other words, you think that a true pro-lifer should not be allowed to become an OB-GYN."

That's not, I think, an unfair statement.

"Perhaps some of that cost could be rejecting federal funding so that you can run your hospital as you wish, and fire whom you wish."

Perhaps hospitals could also get magical ponys. Or they could be running simply by charging what the market can bear, but while that does work for individual hospitals, how would that work to make sure everyone, regardless of ability to pay, gets the health care they need?

[Gary Farber]

"ponys"

Or ponies, even.

[Phil]

Perhaps some of that cost could be rejecting federal funding so that you can run your hospital as you wish, and fire whom you wish.

Given that the rule in question includes cutting off federal funding to noncompliant state and local governments, perhaps you can explain how those entities are to reject local funding and still, you know, operate.

[Jesurgislac]

Glaivester: So in other words, you think that a true pro-lifer should not be allowed to become an OB-GYN. I cannot agree with you there.

Not to pile on, but that's really kind of absurd. Working in OB/GYN means providing reproductive health services to women. A "true pro-lifer" knows in advance that he or she is unwilling to do that - ranging from won't provide contraception to won't perform abortions - and therefore, if they do enter OB/GYN, are doing so either in the knowledge that they'll have to do what they're unwilling to do, or with the plan to provide less-than-complete health services to women.

A conscience clause permitting doctors and nurses as individuals to refuse to perform an abortion was required after the law changed to make abortions legal - since some could have entered the profession before the law changed, and in fairness should be allowed to continue - but shouldn't be needed now.

Anyone who is willing to have women die or suffer serious damage to her health rather than perform an abortion, and who is unwilling to provide women with contraception so they can avoid having to have an abortion, has no business in any branch of the medical profession - they put their religious beliefs ahead of their responsibility to their patients.

[Jesurgislac]

"Serious damage" - any damage. No physician or nurse ought to put their own personal religious values ahead of their duty of care to their patients.

[Sir Kraab]

Fortunately, this isn't quite right:

But the idea that it should be illegal for Planned Parenthood clinics to take someone's willingness to offer contraceptive services into account in hiring decisions is almost as absurd as saying that they should not be able to take into account that person's being a Christian Scientist.

P. 57 of the rule says:

Similarly, we do not foresee that the health care conscience protection laws and this regulation would necessarily constrain employers in the health care field to hire individuals or accept volunteers who, due to their religious beliefs or moral convictions, refuse to perform job duties that comprise the significant majority or the entirety of duties required by the position.

So Planned Parenthood wouldn't be forced to hire someone who objects to abortion or birth control, but there's definitely a lot of wiggle room for claims against other employers in the "significant majority or the entirety of duties" language.

There's further language in the rule about pretextual decisions not to hire based on the "significant majority" language.