Editore"s Note
Tilting at Windmills

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December 18, 2008
By: Hilzoy

A Bad Rule

From the Washington Post:

"The Bush administration yesterday granted sweeping new protections to health workers who refuse to provide care that violates their personal beliefs, setting off an intense battle over opponents' plans to try to repeal the controversial measure. (...)

The far-reaching regulation cuts off federal funding for any state or local government, hospital, health plan, clinic or other entity that does not accommodate doctors, nurses, pharmacists and other employees who refuse to participate in care they find ethically, morally or religiously objectionable. It was sought by conservative groups, abortion opponents and others to safeguard workers from being fired, disciplined or penalized in other ways.

The rule (pdf) covers not just employees who refuse to perform a medical procedure they find objectionable, but to those who refuse to refer people to others who do provide such services. It would, for instance, protect people who not only refuse to perform abortions themselves, but who refuse to tell their patients who else might provide one, where to get the morning-after pill, etc. (See p. 106.) And as the Post notes, it would prevent organizations whose mission is to provide a small set of services from "discriminating against" people who refuse to perform those very services. (E.g., Planned Parenthood can not "discriminate against" people who object to providing contraception, even though providing contraception is 38% of their services delivered.)

This is a wonderful rule for slackers, since it provides a legally protected way to get paid while doing no work at all. Here's the plan:

(1) Get an MD, and a job as a doctor.
(2) Become a Christian Scientist.
(3) Announce your religious objection to participating in any medical procedure, or to supporting such procedures in any way (e.g., by doing the other doctors' paperwork. This refusal would be protected under the rule.)
(4) When your employer protests, explain that your right to refuse to participate in any medical procedure at all is legally protected under this rule.

Voila: white-collar welfare! See how easy?

Seriously: I am all for employers trying to accommodate their employees' religious convictions, when they can do so without compromising (in the case of medical employers) either the care they provide or the interests of their patients. Thus, if one of thirty Ob/Gyns in a large hospital believed that it would be wrong for her to perform abortions, I think it would be great for that hospital to arrange for other doctors to perform any abortions that were required, while asking her to take up the slack in some other way.

But the qualification "when they can do so without compromising either the care they provide or the interests of their patients" is crucial. And there are very clear limits to this, limits that this rule does not respect. My imaginary Christian Scientist doctor was meant to point that out. But the idea that it should be illegal for Planned Parenthood clinics to take someone's willingness to offer contraceptive services into account in hiring decisions is almost as absurd as saying that they should not be able to take into account that person's being a Christian Scientist.

Moreover, being unwilling to refer patients to (for example) providers of abortion or contraception always compromises the interests of patients. Doctors are supposed to explain patients' alternatives to them, and to provide the relevant referrals. They are not supposed to mention only that subset of those alternatives that they approve of on non-medical grounds -- grounds their patient might or might not agree with. The decision whether or not to have an abortion, to go on the pill, etc., is the patient's, not the doctor's. Keeping patients in the dark about those alternatives, or refusing to tell them how to obtain them, is paternalistic, and it's wrong. If a doctor doesn't want to provide such referrals, she should have gone into ophthalmology.

It's an odious rule. Luckily, as Steve noted yesterday, it probably won't last very long.

Hilzoy 9:36 PM Permalink | Trackbacks | Comments (41)

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It's an interesting argument. But referring to doctors as employees sounds off.

Posted by: NealB on December 18, 2008 at 11:04 PM | PERMALINK

NealB: the rule applies to all employees: doctors, nurses, techs, janitors.

Posted by: hilzoy on December 18, 2008 at 11:26 PM | PERMALINK

Crap like this is why I refuse to go to a catholic (or other xtian) hospital. As an HIV+ gay man, I cannot be assured that I will receive proper care in such an institution, or that my husband will be allowed visitation, let alone decision making rights if I am incapacitated.

If a person chooses to be a doctor (or pharmacist or social worker), they are ethically bound to do the best they can for all people seeking their services. Otherwise, they need to find a new profession.

Posted by: Michael W on December 18, 2008 at 11:40 PM | PERMALINK

Somehow I doubt Bush supports similar protections for whistleblowers, who risk personal loss by following their moral compass for the greater good.

A doctor that refuses to prescribe a patient the 'morning after pill' faces exactly zero personal risk for his/her ideological stance. What, exactly, does that doctor need protection from?

Posted by: raff on December 18, 2008 at 11:41 PM | PERMALINK

Maybe anyone who disagrees with this rule should not prescribe all these hypocrites their Viagra. Or anything else they disagree with.

Talk about making the healthcare mess even worse. Bush still manages to ruin anything he touches.

Posted by: kanopsis on December 18, 2008 at 11:41 PM | PERMALINK

Does the CuckooBananas administration ever make rules that aren't bad?
Wonder how they'd accommodate a Satanist teaching at a parochial school?

Posted by: npr on December 18, 2008 at 11:58 PM | PERMALINK

Maybe it is time to start a list, maybe a website that lists ALL those doctors, nurses, etc who refuse to do their duties.

Categorize them by profession, State, Region, etc.. Give them all a profile including their picture.

Run the website as if it is a public service. People who are like minded can look at the list and chose those health care practitioners.

For the people who feel that each person is entitled to free choice and the best care possible, that list can serve as a guide of which health care practitioners to avoid.

Make them feel it in their pocket books and they'll change the tune they're singing.

Works every time.

Posted by: bruno on December 19, 2008 at 12:02 AM | PERMALINK

I like the example. The plan can be greatly simplified by skipping medical school, getting a clerical job, and then stamping everything "Avoid medicine, needs to visit faith healer."

Posted by: Gene Ha on December 19, 2008 at 12:35 AM | PERMALINK

I like Bruno's take on this; it's defensible on all possible counts as a First Amendment exercise in free speech and expression. The law might prevent the employer from any action, but it does not prevent me, for example, from stating the objection of my conscience as regards the actions of the employee-in-question.

But this new "rule" includes a few razor-sharp fangs that the "moral objectors" themselves are now barred from discriminating against. If, for example, I find it "morally objectionable" for my fellow healthcare worker to deny such-&-such a service, my right to counter-object is now fully protected by this HHS ruling. I can call my employer an evil hatemonger and refer his customers to his competition---and he can't fire me for it, or discipline me for it, or curtail my hours, or subject my actions against me in any way---he can't even give me a smaller pay-raise than my fellow employees.

In short---this latest "Bushism" just stuck a great big knife in the throat of the entire "faith-based" healthcare industry....

Posted by: Steve W. on December 19, 2008 at 1:55 AM | PERMALINK

Doesn't Bush's rule open up medical practitioners to huge liability? Doctors are required to have patient's informed consent before they perform procedures. Informed consent includes letting the patient know about risks and alternative treatments.

Posted by: Safron on December 19, 2008 at 2:06 AM | PERMALINK

Safron, before passing this legislation, Boy George passed the law where you can't sue.

I guess now if we need medicine or medical care, might as well go to Mexico, Costa Rica, Brazil, Panama or Puerto Rico - that's where the good doctors are going anyway, they study & practice here, then go to these countries.

Posted by: annjell on December 19, 2008 at 3:04 AM | PERMALINK

BTW, it doesn't help that the FDA is not functioning - all the medication coming from China is just as deadly.

Posted by: annjell on December 19, 2008 at 3:06 AM | PERMALINK

Read a translation of the Hypocratic oath. It alludes to an obligation to avoid abortion as a medical technique with the same clarity that the second ammendment grants citizens the right to bear WMD.

Posted by: rbe1 on December 19, 2008 at 4:10 AM | PERMALINK

Read a translation of the Hypocratic oath. It alludes to an obligation to avoid abortion as a medical technique with the same clarity that the second ammendment grants citizens the right to bear WMD.

1) Hippocratic. From Hippocrates, the father of medicine. The Hypocratic Oath would be something along the lines of "First, tell everyone else not to do any harm, but it's OK if you do harm yourself".

2) Maybe you should read a translation yourself. There's no ban on abortion in the original oath. It does, however, include the invocation of the god Apollo, a commitment to live with your teacher and share all your stuff with him, and a clear and absolute ban on performing operations for kidney stones.

Posted by: ajay on December 19, 2008 at 4:40 AM | PERMALINK

I think the rule is here to stay. Rick Warren will talk Obama into keeping it. Maybe that was the price of Warren's giving the invocation--I'll do it if you keep the personal belief rule.

Posted by: Helena Montana on December 19, 2008 at 5:40 AM | PERMALINK

When I was 18, I found out I was pregnant. My family doctor at the time was a devout Catholic. Together we explored my "options" - and in his humble opinion, I was neither mentally or emotionally mature enough to care for a baby. I agreed. He then told me that he was personally against abortion - and then provided me with literature and information on what he termed highly reputable abortion providers. And he also gave me a list of therapists should I feel the need to work out my emotions. I did have an abortion - and am forever grateful to the kindness and understanding of my doctor who saw me as a patient and a person not as a mere fetus vessel. He would be appalled by any practitioner who refused to fully inform a patient of ALL options of care.

Posted by: Tess on December 19, 2008 at 7:11 AM | PERMALINK

I think that as a health care provider, you have to put your personal beliefs aside. If something is that objectional to you don't become a health care provider,especially something like an ob/gyn or pharmacist. A good example of this is that as a doctor or nurse you often have to save the lives of despicable people. Murderers, rapists terrorists. You put your emotions and moral objections to the side and treat that person as you would anyone else. If you can't, become a Wall Street banker.

Posted by: Van on December 19, 2008 at 7:55 AM | PERMALINK

the medical equivalent of "don't ask, don't tell" passive agression.

Posted by: rememberNovember on December 19, 2008 at 9:00 AM | PERMALINK

Recently I started a new job at a Catholic institution. In the benefits orientation, I got three choices for health coverage, the first of which was the "Catholic" choice: no coverage for IVF, contraceptives, or (obvs) terminations. We have 2 other options that are just as good with coverage for those things, though, so it seemed fair to me. If it had been the only choice, I might have lawyered up.

And: Tess, I'm glad you had the appropriate support that you needed. If only it always worked that way.

Posted by: anonymous on December 19, 2008 at 9:41 AM | PERMALINK

So if a Christian Scientist became a heart surgeon, could he or she refuse to treat a dying patient because it went against "God's will"? This isn't a slippery slope, it'sd Mt. Everest with a grease slide.

If you don't want to perform the procedures required of your practice, FIND ANOTHER JOB!

Posted by: Stetson Kennedy on December 19, 2008 at 10:17 AM | PERMALINK

Just as a matter of civil law, your relationship with a doctor is not purely contractual. You are placing your trust in his professional expertise, and that relationship of trust creates obligations in the medical professional far beyond the relationship you have with, say, your dry cleaner. A doctor who allows anything other than the best interest of the patient to interfere with the advice and information given to that patient is setting him or herself up for a serious lawsuit. That Bush would encourage such malpractice is just reprehensible.

Posted by: glenn on December 19, 2008 at 10:20 AM | PERMALINK

However, as a physician, I want to reserve the right to not be forced to render care that may be harmful to a patient who cannot benefit, e.g., a Terry Schiavo type of case. I am obligated, though, to refer the patient to a physician who has no reservations about doing so.

Posted by: digitusmedius on December 19, 2008 at 10:25 AM | PERMALINK

Jesus everyone is jumping off the wrong cliff over this one. This has little to do with doctors or health practitioners at the top of the health care provider chain. It has more to do with protecting a tiny minority of pharmacists from lawsuits for refusing to stock their shelves with the home-induced abortion medication. End of story.

And once the "rule" is rescinded and the law suits move forward, the right wing can approach their pharma and wingnut contributors and say "we tried" and the flow of money will be restored immediately. Like those contributors have anywhere else to place their money.

Posted by: Mr Blifil on December 19, 2008 at 10:43 AM | PERMALINK

The hippocratic oath is as binding on a person's character an any. 'Keeping one's word' has always been an indication one one's character. These sleazy sort are not needed in medical related professions.

Posted by: captain dan on December 19, 2008 at 10:44 AM | PERMALINK

See, the thing is, this cuts both ways. It doesn't say "abortion", but any procedure that they find morally objectionable.

"I find it morally objectionable to treat Republicans", for example. Or evangelicals.

Be creative!

Posted by: napalmgod on December 19, 2008 at 11:01 AM | PERMALINK

so i find it morally objectionable to eat animals. what happens when i land that sweet job at burger king? i guess theyd fire my ass within the first hour with absolutely no recriminations and theyd have every right to. why are conservatives essentially telling businesses who they cant fire? id fire one of these "religious" employees right away if they refuse to do their job.

Posted by: ron on December 19, 2008 at 11:27 AM | PERMALINK

I work at NASA. I believe the earth is flat and 6000 years old, so I sit on my ass all day doing crossword puzzles (the non-satanic ones, anyway) and it's impossible for me to be fired. Thanks, Bushie!

Posted by: Bigby on December 19, 2008 at 11:30 AM | PERMALINK

Oh, is there a conflict between the teachings of the Supreme Court and the teachings of Rome and the Evangelical ministry?

I thought JFK settled that for the PC libs? Another "isn't it wonderful...", i.e., "isn't it wonderful we have our first (fill in the blank) in the position of (fill in the blank).

Isn't it wonderful we have our first Evangelical Christian as president! He broke the glass ceiling.

Posted by: Luther on December 19, 2008 at 11:33 AM | PERMALINK

supposedly the first evangelical/born again president was carter, dumbass.

and bush is one of the worst examples of a christian ive ever seen.

Posted by: ron on December 19, 2008 at 11:35 AM | PERMALINK

Why is referring to a doctor as an employee "off"? Because doctors exist in some higher realm that the rest of us don't? Doctors are hired by hospitals and clinics. That makes them employees.

Posted by: Sarah on December 19, 2008 at 12:00 PM | PERMALINK

Hilzoy - I love your plan for white-collar welfare. Funny stuff! Thanks for the chuckle.

Posted by: TG Chicago on December 19, 2008 at 12:03 PM | PERMALINK

It comforting to know that if I ever show up late at night to a clinic bleeding profusely and the only nurse is a Jehovah's Witness with a moral objection to blood transfusions, the nurse won't be made uncomfortable while my life ebbs away.

Posted by: CreativePotato on December 19, 2008 at 12:04 PM | PERMALINK

But referring to doctors as employees sounds off.

Why? Either the doctor is employed by the hospital or medical group -- and is therefore an employee -- or the doctor has a private practice and is hired individually by each patient, making him/her an employee.

Maybe the problem is that people are thinking of doctors as magical gods who heal people out of the goodness of their hearts and not professionals doing a job for a paycheck. I know that's how doctors want us to think of them, but it's not exactly reality-based.

Posted by: Mnemosyne on December 19, 2008 at 12:44 PM | PERMALINK
It has more to do with protecting a tiny minority of pharmacists from lawsuits for refusing to stock their shelves with the home-induced abortion medication

Emergency contraception is not abortion medication.
Don't forget that that fundamental fact.

Posted by: kenga on December 19, 2008 at 2:18 PM | PERMALINK

Can a Jehovah's Witness ER doctor refuse to give a life-saving transfusion?

Posted by: scarshapedstar on December 19, 2008 at 2:25 PM | PERMALINK

My mother had a malignant cancer that had viciously spread. She was in pain, on high dosages of pain killers, terminal, and just barely hanging in there. Our family convened and all of us decided to not engage in any heroic measures, but to just let her fade away, with us there in the hospital or otherwise connected, carrying her away.

On Friday evening at shift change a woman doctor arrived. She was as evangelical as anyone could be, and she reversed our wishes and the care-decisions of the doctors who had attended our mother during the week preceding. She began to take medical measures that ran counter to the previous doctors'.

The woman would not budge. It wasn't just that she disrespected us and our bond with our mother. It wasn't just that she took action that ran counter to our wishes and other doctors' practices. It was also that she chose the occasion to instruct us, through her obstinacy, about her faith and the superiority of the mandates her faith imposed on her to those we ourselves were exercising.

Fortunately we fought her attempts - calls to hospital board members, threats of a lawsuit (I was practicing law at the time), etc.

But the battle we waged as out mother was dying was a harsh and unnecessary intrusion into our family circle. It also illustrates how medical decision-making can be interrupted, and interrupted again, as care givers with differing faiths practice their faith instead of medicine.

It is those interrupted medical decisions, and the ups and downs and back and forths, that will generate lawsuits and be the undoing of this new rule.

Posted by: teedawg on December 19, 2008 at 5:00 PM | PERMALINK

Why? Either the doctor is employed by the hospital or medical group -- and is therefore an employee -- or the doctor has a private practice and is hired individually by each patient, making him/her an employee.

In most usages of the word, particularly in legal use, the latter situation is not considered an employer/employee relationship. Various legal/tax consequences hinge on that -- e.g., most doctors can't collectively bargain, you don't have to pay employer SS taxes on the money you pay to the kid who shovels the walk (or on your bill for medical treatment).

Posted by: sj on December 19, 2008 at 8:47 PM | PERMALINK

And here I always thought the practice of medicine was about, you know, the needs of the patient, rather than about the personal views of the provider.

my bad...

Posted by: Emily Sieger on December 19, 2008 at 11:40 PM | PERMALINK

It's fairly simple: If you don't want to do the work, don't take the money.

If you are a conscientious objector, don't volunteer to join the army.

If you want be paid to be a doctor, then be a doctor. If you can't, or won't, then quit.

Otherwise, you're stealing.

Posted by: TelltaleHeart on December 20, 2008 at 3:51 AM | PERMALINK

Thank you, Telltale. If you can't or won't perform the tasks required by your job for any reason - physical, mental, or moral - you have no business holding that job. And you certainly have no business accepting money for refusing to do it. I have zero tolerance for someone who takes a job knowing that they may be required to do things they find morally objectionable, then complains that they are being forced to do things they find morally objectionable. Find another job or STFU and do the job you have. Another example of conservatives demanding special rights for themselves while pissing on the claims of people who suffer REAL discrimination.

Posted by: jjcomet on December 20, 2008 at 9:46 AM | PERMALINK

I think these people take a Hypocritic Oath, not a Hippocratic Oath.

Do they pass their boards? Or are there Christian Right board examiners for Christian Right doctors?

Posted by: sara on December 20, 2008 at 9:01 PM | PERMALINK



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