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Analysis

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.

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.”

The HHS proposal uses the survey’s tally to suggest that OB-GYNs overwhelmingly object to participating in abortion on personal moral or religious grounds. But that’s “a dangerous misrepresentation of the study,” says lead author Debra Stulberg, MD, MAPP, associate professor and director of research in the Department of Family Medicine at the University of Chicago.

“It obscures the fact that many doctors who are willing to provide abortion are unable to do so due to legal or institutional barriers. These institutional barriers include religious hospital policies that prevent doctors from providing full-scope reproductive services.” Stulberg tells HealthLeaders Media.

A spokesperson for the HHS OCR says any misrepresentation of scholarly work cited in the proposal was unintentional. The public will have 60 days to submit comments while HHS prepares its final rule.

Does it matter?
 

Less than 1% of the HHS proposal relies on the faulty footnote for sourcing. Officials could strike the citation and a few sentences from the document without changing its overall argument. At the same time, this footnote is a microcosm of the broader debate over whose rights are in greatest need of protection.

Despite assessing the same healthcare sector, different stakeholders reach different conclusions as to what the problems are and how they should be solved. That debate has propelled the health policy pendulum back and forth for years.

This story is much bigger than President Donald Trump’s efforts to undo the healthcare policymaking of his predecessor, says Aasim I. Padela, MD, MSc, director of the Program on Medicine and Religion at the University of Chicago.

“You have to have a longer history on these issues, where there is sort of a ping-ponging, I would say, a yo-yoing between … putting different people or different interests first,” Padela tells HealthLeaders Media.

What makes this policymaking so tricky is that neither side’s top priority is dispensable. A liberal democracy that values ethical pluralism must value the rights of patients and providers alike, Padela says.

“We have to find a balanced solution between both views, and that is the challenge,” he says.

The pendulum swung toward physicians’ rights of conscience in late 2008, when HHS issued a final rule in the twilight of President George W. Bush’s second term.

The rule gave HHS OCR responsibility to investigate complaints based on the conscience protections found in three laws: the Church Amendments, the Public Health Service Act, and the Weldon Amendment. It also required certain recipients of HHS funding to certify in writing that they would comply with the three laws.

Within three months, however, the Obama administration proposed rescinding the 2008 rule in its entirety. The health policy pendulum then began swinging toward favoring the rights of patients to have unfettered access to care, Padela says.

The Affordable Care Act was passed in 2010, and the Obama administration finalized its own HHS conscience rule in 2011, rescinding most of the 2008 rule and angering many conservatives.

“It’s no surprise that an administration that wants to take over health care wants to dictate how health workers treat patients,” then-Rep. Joe Pitts, R-Pa., said at the time.

The 2018 proposal would restore much of what HHS had finalized at the tail end of the Bush administration. But it would also go significantly further.

The proposal says it would delegate to HHS OCR “full enforcement authority over a significantly larger universe” of statutes than the 2008 and 2011 rules had, including about two dozen existing laws. It would also require HHS and certain recipients of HHS funds to notify employees, patients, and the public of the federal conscience laws and related statutes.

The proposal argues that more forcefully defending the rights of physicians and healthcare organizations will improve patient care by guaranteeing a channel for clear communication at the outset of the physician-patient relationship.

“A pro-life woman may seek a pro-life ob-gyn to advise her on decisions relating to her fertility and reproductive choices,” the proposal states. “A pro-vaccination parent may seek a pediatrician who shares his views.”

There are often ways to accommodate a patient’s wishes without coercing physicians to act contrary to their deeply held views, Padela says. But a purely free-market approach—in which each patient self-selects likeminded providers, and providers are free to refrain from offering services that contradict their ethical and moral understandings of human life and health—should not be considered a viable cure-all, he adds.

“I don’t think the market can solve the problems of inequity that we have,” Padela says.

And some critics worry the HHS proposal will prove particularly detrimental to certain marginalized groups.

Serving LGBT patients
 

When the Trump administration hired Roger Severino last spring to lead HHS OCR, there was no press release or public announcement. His name, photo, and biography simply appeared on the office’s website.

A former trial attorney for the Department of Justice’s Civil Rights Division, Severino had been serving as director of the DeVos Center for Religion and Civil Society in the Institute for Family, Community, and Opportunity at conservative think tank The Heritage Foundation, where his thought leadership on matters of sexual orientation and gender identity riled LGBT rights advocates.

Jennifer C. Pizer, JD, law and policy director for the pro-LGBT advocacy organization Lambda Legal, says Severino has long shown hostility to transgender people and same-sex relationships.

“His work has been high-profile, and it was deeply alarming to us when he was tapped for that position,” Pizer tells HealthLeaders Media. “And these recent actions by that agency under his direction are profoundly concerning. But I can’t say they’re an immense surprise.”

Pizer worries that same-sex couples and transgender people, in particular, could face additional discrimination in healthcare if HHS OCR follows through on its new direction-setting.

In 2008, Pizer won a case before the California Supreme Court on behalf of Guadalupe Benitez, a lesbian woman who had been denied care by a fertility doctor at a for-profit clinic due to the doctor’s religious beliefs. The victory relied on a state law that bars discrimination based on sexual orientation or gender identity.

The principle is clear, Pizer says: Physicians and institutions that offer a particular service to some people cannot violate a civil rights law by barring other people from the same service.

That principle, however, is not universally agreed upon.

Last year, the American Civil Liberties Union of Northern California filed a lawsuit against Dignity Health, alleging the Catholic system had violated the same California law by discriminating against Evan Minton, a transgender man who had been scheduled to receive a hysterectomy at Dignity’s Mercy San Juan Medical Center (MSJMC).

Minton’s physician had agreed to the procedure. It was the religious institution that objected and canceled his operation.

“I routinely perform hysterectomies at Mercy San Juan,” Lindsey Dawson, MD, said in a statement at the time. “This is the first time the hospital has prevented me from doing this surgery. It’s very clear to me that the surgery was canceled because Evan is transgender.” 

But even if Minton’s gender identity was what prompted the cancelation, the procedure was successfully rescheduled at another facility a few days later, so Minton’s case didn’t hold water, a judge ruled, finding in favor of Dignity Health late last fall.

“Mr. Minton has not alleged, nor does it appear that it is reasonably possible for him to allege, that his receiving the procedure he desired from the physician he selected to perform that procedure three days later than he had planned at a different hospital than he desired deprived him of full and equal access to the procedure, even, assuming … that Dignity Health’s refusal to have the procedure performed at MSJMC was substantially motivated by Mr. Minton’s gender identity,” Superior Court Judge Harold E. Kahn wrote.

Elizabeth Gill, JD, a senior staff attorney for the ACLU of Northern California, says Minton is in the process of appealing the decision.

“From our perspective, Dignity Health is an enormous operation. They’re the largest hospital chain in the state of California, and they’re a business, and they’re open to the general public,” Gill tells HealthLeaders Media.

“And if they choose to operate as a business open to the general public,” Gill adds, “then they should be subject to the same rules that apply to other businesses [open] to the general public, which in the state of California explicitly include that you cannot discriminate based on someone’s gender identity.”

Pizer says hospitals that receive public money to serve the public should do so “according to medical standards, not religious standards.”

Nature of medicine
 

Underlying this debate over the conscience rights of patients, physicians, and healthcare institutions, there’s a more fundamental dispute over what medicine’s aim should be, says Farr A. Curlin, MD, a professor of medicine and medical humanities at the Duke University School of Medicine and co-director of the Theology, Medicine and Culture Initiative at Duke Divinity School.

Some promote what could be described as “new medicine,” which pursues a sense of wellbeing in accordance with the patient’s wishes, Curlin says, while others hold to what could be described as the “traditional approach,” which sees health as “an objective, bodily norm, not wholly determined by what patients or governing bodies want or value.”

The traditional approach demands that physicians and the healthcare organizations where they work retain the discretion to refuse to provide services that the physician or organization believes to be contrary to the patient’s health, Curlin says.

“If a physician believes that sterilization and abortion are essential to the health of her patients, she should probably decide not to work in a Catholic hospital. But a Catholic hospital must be allowed to forbid sterilization and abortion in its premises,” Curlin tells HealthLeaders Media in an email.

“Otherwise, there is no possibility for physicians and patients and others, who believe that sterilization and abortion contradict patient health, to form institutions in which they can practice medicine according to this longstanding and principled understanding.”

Curlin, by the way, is a co-author on the OB-GYN survey cited by the HHS proposal via Freakonomics.

Section 1557 of the ACA prohibits certain health programs and activities from discriminating based on several characteristics, including sex. Under the Obama administration, in 2016, HHS issued a final rule that interpreted the ban on sex discrimination as protecting gender identity and expression as well.

To ensure that transgender patients have access to healthcare, the Obama administration said its view of unlawful sex discrimination would include a physician or institution declining to participate in gender transition services.

“This was new, and ominous,” Curlin says. “Under the guise of prohibiting discrimination against transgender patients, it actually coerced physicians to set aside their judgment about what good medical care for these patients entails.”

Opponents sued, and the U.S. District Court for the Northern District of Texas blocked HHS OCR from enforcing Section 1557’s prohibition on gender identity discrimination.

Pizer says it’s unreasonable to think refusing to provide medical services to a transgender patient falls outside the scope of “sex discrimination” as contemplated by Section 1557.

“We believe that the only coherent way to understand that term is that it should cover discrimination based on gender identity or sexual orientation as forms of sex discrimination,” Pizer says. “Ultimately, that issue may go to the Supreme Court.”

Status updates filed in the Northern District of Texas indicate, however, that HHS has been reevaluating the so-called transgender mandate, as part of a rulemaking process pertaining to nondiscrimination laws—a process that would likely lead the administration to drop its defense of the Obama-era rule.

“The Trump administration’s efforts are merely restoring the prior status quo—in which it was taken for granted that physicians must care for those who are sick, regardless of the patient’s other characteristics, including sex and gender,” Curlin says, “but physicians are not required to do that which they believe contradicts the health of their patients.

“So, for example, they must care for a transgender patient who has an infection, or a heart attack, or diabetes, but they are not required to participate in ‘gender transition services’ if they believe such services contradict the patient’s health.”

Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.


KEY TAKEAWAYS

A formal HHS proposal cites a 'Freakonomics' blog post and misrepresents an OB-GYN survey.

The new direction proposed for the HHS Office for Civil Rights would restore and expand pre-Obama-era priorities.

Advocates worry healthcare discrimination against transgender patients will intensify.

Ethicist calls for an approach that serves patients and accommodates the conscience rights of physicians and religious institutions alike.


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