Protection of Health-Care Providers' Rights of Conscience in American Law: Present, Past, and Future
Wardle, Lynn D., Ave Maria Law Review
I. INTRODUCTION: THREE PERSPECTIVES ON PROTECTING THE RIGHTS OF CONSCIENCE OF HEALTH-CARE PROVIDERS
This Article will briefly review legal protection for a health-care provider's right of conscience in three historical periods or from three broad and overlapping chronological perspectives, which, for simplicity's sake, are labeled past, present, and future. This review will address several questions: Does legal protection for a health-care provider's right of conscience have significance as a matter of foundational principles of republican constitutionalism? Is legal protection for fights of conscience of health-care providers constitutionally permissible? Is it constitutionally required? Are current legal protections for rights of conscience of health-care providers adequate? Will they be adequate in the future? Are protections for providers' rights of conscience and patients' rights to seek legal treatments reconcilable?
Part II of this Article reviews how protection of fights of conscience is deeply embedded in the foundational republican principles that undergird the American Constitution. Protection for rights of conscience is a fundamental human right in the American legal tradition as a matter of core principles. This part also considers the constitutional history of the validity of statutory and administrative provisions that provide protection for rights of conscience of health-care providers, and it shows that the constitutional doctrine of abortion privacy or liberty itself assumes and allows protection for the rights of conscience of providers to decline providing services that are morally troubling (to them).
Part III briefly considers the present policy--the current panoply of legal protections of rights of conscience of health-care providers in American (mostly federal) law. The congressional enactments as well as the Provider Conscience Rule adopted by the Department of Health and Human Services in 2008, and the debate over the necessity for protection of rights of conscience in law in America today are particularly considered. Some deficiencies of the current regime of legal protections are noted.
In Part IV, protection for rights of conscience of health-care providers in the future is considered. This part focuses particularly on the proposal to rescind the 2008 Provider Conscience Rule.
Part V concludes that health-care providers' rights of conscience have been and can be fully protected, while patient access to services is accommodated, but only if there is full commitment to protecting, not sacrificing or giving nominal respect for, rights of conscience.
This Article focuses primarily upon rights of conscience in the abortion context because that is where the issue has been raised, discussed, and contended most thoroughly for the past four decades. However, the issue extends far beyond the practice of elective abortion. Today, a growing number of health-care practices, procedures, medications, and methods raise serious moral concerns for at least some health-care providers. These include such issues as: human stem cell research; cloning; genetic engineering (including gender pre-selection); DNA screening and medical treatment for various genetic disorders; surgical abortion (by a variety of procedures including so-called "partial-birth abortion"); pharmaceutical abortion (by such pills as RU-486 and the "morning after pill" (MAP)); sterilization; capital punishment; assisted suicide; sex-change procedures; provision of contraceptives to minors; and provision of assisted reproduction technologies to unmarried persons and couples including gay, lesbian, and transgendered couples, (1) to name just a few of the currently controversial biomedical practices that raise profound moral implications for at least some members of our society. The principles established herein with specific reference to abortion are intended to be generally applicable in non-abortion contexts in which health-care providers may decline to provide or assist in technically possible biomedical experiments, procedures, or treatments for reasons of conscience. …