Beyond Politics: A Social and Cultural History of Federal Healthcare Conscience Protections

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I. INTRODUCTION

The day before the inauguration of his Democratic successor, President George W. Bush oversaw the promulgation of an administrative rule that extended "sweeping" new conscience protections to healthcare providers, one which would allow them to refuse to participate in or refuse to refer for medical services to which they morally or religiously object. Enacted in a funding regulation through the Department of Health and Human Services ("HHS"), the rule - commonly called the Provider Conscience Regulation ("Regulation") - purported to clarify and implement existing federal law; by its own terms; however, the Regulation pushed the boundaries of those laws, granting protections to a broader class of individuals and across a wider range of services.3 In so doing, the Regulation sought to resolve an ongoing tension between patient access and provider autonomy, yet it served to reignite a long-standing debate over the proper role of morals in medicine.

Entering office in January 2009, President Barack Obama inherited both the Regulation and the consequent debate. Though his Administration published a proposed rescission of the rule on March 10, 2009 - with the public comment period ending April 9, 2009 - the current HHS has yet to issue a formal rescission of the rule.5

Despite its unknown fate, the Provider Conscience Regulation presents a vital opportunity for reflection. While state governments have consistently legislated in the area of provider conscience, the federal government has only done so a handful of times, and never before through an administrative regulation.' In claiming its ancestry in these rare instances of federal involvement, the Regulation then begs the question: when and why has the federal government chosen to exert its power to insulate healthcare providers' freedom of conscience?

In answering this question, I seek to surpass the superficial explanation of politics and ideology that seems to arise in most discussions of morals in medicine.7 While such interests surely motivate governmental actors, they fail to carry the weight of a comprehensive explanation of the forty-year trajectory of federal conscience protections. Indeed, though party politics and ideology may provide a framework by which individuals interpret the world, absent extenuating circumstances, they do not create the events one must interpret.

My aim, then, is to explore the world in which federal conscience provisions were enacted and to identify potential historical triggers for such protections. Due to the myriad factors that influence governmental decisionmaking, I refrain from positing a direct causal connection between the cultural events and the corresponding federal action discussed below. Rather, I suggest that certain social and cultural events introduced moral challenges to the practice of medicine, which, in turn created the perceived need for conscience protections. Thus, the judicial expansion of reproductive rights in the 1970s, the changing landscape of medical education and the healthcare industry throughout the 1990s, and the introduction of a chemical contraceptive and the influence of professional medical organizations through the new millennium relay the underlying narrative of federal conscience protections.

This Note will proceed in three parts. Part II will lay the conceptual framework for a substantive discussion of "conscience clauses," articulating a working definition of the term and introducing elements pertinent to the ongoing debate over their validity. Part III will provide the legal and social history of federal conscience protections in chronological order, beginning with the Church Amendment of 1973 and concluding with the Provider Conscience Regulation of 2009- This section will both describe the substance of the legislation (or administrative rule) and explore the relevant advancements in society or culture that underlie them. I will then conclude in Part IV, arguing that this historical analysis reveals a paradox in which various attempts to expand patients' access to care triggers a perceived threat to provider conscience, with the federal government consistently resolving this tension in favor of the provider. …