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HHS Policy Pendulum Swinging Back Toward Providers’ Rights of Conscience

By Steven Porter  
   January 29, 2018

A years-long tug-of-war pits the rights of patients against those of physicians and healthcare organizations—all of whom have legal rights to refuse certain medical procedures on moral or religious grounds.

  1. A peculiar footnote. A formal HHS proposal cites a ‘Freakonomics’ blog post and misrepresents an OB-GYN survey.
  2. Does it matter? The new direction proposed for the HHS Office for Civil Rights would restore and expand pre-Obama-era priorities.
  3. Serving LGBT patients. Advocates worry healthcare discrimination against transgender patients will intensify.
  4. Nature of medicine. Ethicist calls for an approach that serves patients and accommodates the conscience rights of physicians and religious institutions alike.

There’s a peculiar footnote buried deep inside a dense document drafted by the Department of Health and Human Services.

That document, which spans 51 pages in last Friday’s edition of the Federal Register, outlines proposed rulemaking for the HHS Office for Civil Rights (OCR), which recently announced it would add a new Conscience and Religious Freedom Division as part of an effort to ramp up enforcement of existing laws that protect a healthcare worker’s right to decline to participate in abortion and other services on moral or religious grounds.

The document argues these conscience laws, some of which have been on the books for decades, went under-enforced during President Barack Obama’s eight years in office. And it argues that many doctors and nurses across the U.S. would benefit from the government taking a renewed interest in guaranteeing their conscience rights are respected.

The HHS proposal supports its arguments with a variety of sources, including one odd citation about two-thirds of the way through.

“A 2011 study released by the American College of Obstetrics and Gynecology revealed that, ‘while 97% of ob-gyns reported having encountered women seeking an abortion, only 14% were willing to perform the service,’” the HHS proposal states.

What’s odd about that passage is that it doesn’t quote from the ACOG study itself. Rather, it quotes from a blog post published by Freakonomics, a website based on a bestselling book by the same name. A footnote cites the blog post’s title and URL as its source.

Although the Freakonomics post cites and links to the ACOG study, it fails to accurately paraphrase the study’s central finding. By quoting the blog, HHS incorporated that error into its proposed rulemaking.

The study, which surveyed 1,800 practicing OB-GYNs, didn’t find that 14% “were willing to perform” abortions. It didn’t even ask respondents whether they were willing to perform abortions. The surveyors posed two questions on the topic: (1) “in your practice, do you ever encounter patients seeking an abortion?” and (2) “do you provide abortion services?”

The first sentence of the results section clearly reports how respondents answered: “Among practicing OB-GYNs, 97% encountered patients seeking abortions, whereas 14% performed them.”


Steven Porter is editor at HealthLeaders.

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