Conscience Protection Update: What Might Happen Next and Why You Should Care

I can’t thank each of you enough for your response to my post about President Obama seeking to strip conscience protections for doctors, nurses, pharmacists and medical students. So many of you contacted Health and Human Services and also encouraged your family and friends to do the same.

It’s impossible to tell how many comments HHS received in support of protecting medical professionals’ moral and religious freedom. Individuals across the country submitted nearly 50,000 comments via Freedom2Care. More than 14,000 comments were also submitted via The Heritage Foundation’s project, That doesn’t include all the comments that were submitted via postal mail, or those folks who sent emails through the United States Council of Catholic Bishops, who also ran a very successful campaign speaking out against Obama’s threat. (If you Google “conscience protection,” the USCCB resource page is the first result listed. Impressive, huh?)

Now that the deadline to comment has passed, it’s fitting to revisit this. What’s happened and, more importantly, what happens next?

I’ve done a little homework on the issue myself and, in a recent phone interview, Heritage Foundation fellow Randy Pate clarified these concerns for me.

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He first explained that the whole comment period process is a result of the Administrative Procedure Act. HHS is obligated to show that they have taken the substantive comments into account, but they have no obligation to release the number of the comments they received or to release firm data on the breakdown of positive vs. negative comments. Comments that were submitted electronically may become available for the public to review.

What kind of time frame are we looking at before further action is taken? The Secretary of HHS and the department in general have full discretion here and there is absolutely no timetable they are bound to follow, although Congress or legal issues could put HHS’ feet to the fire.

Pate outlined a handful of scenarios for me regarding what could happen next, presented here in my own words:

a) Based on the results of the “substantive comments” submitted to them, HHS could do nothing. If this is the case, Bush’s protections for medical professionals will stay in place. This is an ideal outcome, but unlikely.

b) HHS could propose to amend the existing protections or change the language in some way. If this is the case, Pate explained, another public comment period would be required and the whole process would start all over again. This is much more likely than option A.

d) Rather than scrap the current protections or go through the hassle of starting all over again, HHS could issue guidance regarding how various agencies should enforce the current protections, though this is less probable than a complete rescinding.

e) Obama’s HHS could, of course, follow through with rescinding the resolution at anytime.

f) Congress could step in, but the details of how that might happen are complicated. According to a follow-up email from Pate:

I don’t think Congress acting on this issue in a stand-alone fashion is likely either. They might try to include language on conscience (or erode conscience protections by putting in language guaranteeing a “right of access” to health care that would trump conscience rights) in a larger health care reform bill. There is also the possibility that Congress will try to remove the Weldon Amendment, one of the three laws on which the conscience clause regulation is based. The Weldon Amendment is a “rider” to the annual Labor-HHS Appropriations bill, so unlike PHSA 245 or the Church Amendments, the Weldon Amendment must be included and approved in the Labor-HHS bill each year or else it expires. They might also possibly try to amend the Church Amendments, but I think that is less likely.

g) The game could change through the courts instead. Pate explains:

Shortly after the conscience clause regulation was finalized, several states’ attorneys general filed a federal lawsuit to enjoin the regulation and prevent its enforcement. HHS, which now answers to President Obama, is the defendant because HHS issued the regulation. The Obama Administration might choose to put forth a very weak defense of the regulation so that it loses in court and “get rid” of the regulation that way.

What’s the short version? Pate thinks that we’re most likely to see Obama (through HHS) follow through with rescinding the regulation. “I think that in doing this they are trying to (and have been largely successful so far) in having it both ways: they want to sound reasonable and accommodating of different views on conscience and the life issue in general, but they are really pursuing a hard-left agenda that threatens conscience rights,” Pate explained.

It’s worth spelling out that this is not just about abortion. It’s about end of life decisions. Euthanasia. Or, taking that one step further, what about a doctor who isn’t comfortable prescribing therapies derived from research on aborted embryos?

What’s more important, however, than the immediate next step and even what this means for life issues is what this means for the bigger picture of health care in America. The Obama administration has not been quiet about its agenda for sweeping national health care reform: an epic expansion of existing government programs, like SCHIP, Medicaid and more, coupled with the creation of even more programs. In short, the Obama administration wants to transform the government into what Pate calls “a new, uber-regulator.”

Pate expanded on how the conscience protection issue fits into a bigger agenda via email:

Of course Senator Tom Coburn (also a medical doctor) attempted to include an amendment in the Obama $634 billion “down payment” on national health care reform that would have a) insured that health care providers’ conscience rights were protected in any health care reform bill and b) prohibit the federal government from forcing or coercing patients (citizens) into any particular health insurance plan. The Democratic-led Senate rejected this amendment, so there is a real possiblity that conscience rights will be eroded in the upcoming national health care reform legislation. So there is a very real connection between the upcoming debate over national health care reform and conscience rights for both health care providers and patients. There is a real danger that both groups’ rights could be reduced or eroded.

Their plans call for a huge shift in resources and power from the state and local leadership to the federal government. Thus, the endangered conscience protections should worry Americans not only because of what it means for expanding abortion and other practices, but what this means as a part of the bigger agenda. If the conscience protections for medical professionals are eliminated, both patients–that is, sick Americans–and doctors won’t have as many options for going outside the federal sphere. Pro-choice Americans should worry about that, too.

For example, the implications for Catholic hospitals alone if these protections are rescinded is epic. Pate says Catholic hospitals are in real danger if this goes through. In our phone interview, Pate reiterated what he’d written in recent post at The Next Right:

If these institutions’ conscience rights are not protected, they could be forced to shut their doors or reduce services. Undoubtedly, poor and rural patients served by these institutions will suffer the most in such a scenario.

Catholic hospitals make up an estimated 20-33 percent of major medical facilities nationwide. On top of the burden this will put on poor and rural patients, we can expect many of these hospitals to pop up for sale, representing a major shift in American medical care from nonprofit and community-oriented care to for profit institutions.

Life issues aside, the overriding goal here is to centralize money, power and control in Washington, D.C., rather than allowing communities and local and state governments to make the best decisions for their unique populations. It’s an ever-popular trend in public policy for the federal government to creep deeper and deeper into the goings on of local areas and this is one instance in particular that has crippling consequences. Watch for what happens next with this issue, as it’s likely to indicate the beginning of massive health care reform for this country, reforms that are going to make you sick.

If you’re looking to take additional action, Freedom2Care is facilitating a letter-writing campaign to the President and Congress in support of medical professionals’ rights.

This is cross-posted from

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