HHS Secretary Michael Leavitt, in a press conference to release the department's proposed rule, went so far as to frame the issue this way: ""Freedom of conscience is not to be surrendered upon issuance of a medical degree." He told reporters, "This is about protecting the right of a physician to practice medicine according to his or her moral compass."

Is there another solution? How about requiring the hospital to have a routine protocol of offering EC to all rape victims, and designating someone on each shift who does not object to EC to step in, inform the patient about EC and offer it? This surely would be somewhat cumbersome, and would require careful management of hospital staffing schedules. It also would require that Dr. Brown and any other hospital emergency department personnel who have objections to dispensing EC disclose those objections up front, so that hospital administrators can make appropriate scheduling decisions.

Religious hospital claims to "conscience" rights

But what if the hospital as an institution operates under a religious doctrine that expresses grave reservations about the use of emergency contraception? Let's put Dr. Brown and Sally in the emergency department of St. Mary's Roman Catholic Hospital. Like other Catholic hospitals, it is governed by the Ethical and Religious Directives for Catholic Health Care Services (ERDs), which offer guidance about EC that has been interpreted in a variety of ways.  Some Catholic hospitals provide EC to all rape victims. Some administer a pregnancy test, even though such a test would only be able to detect a pregnancy that was established prior to the rape (and if the woman is already pregnant, she does not need EC). Some require the rape victim to undergo an ovulation test. If the test comes back positive, EC is denied because of the hypothetical possibility that there might be a fertilized egg in existence. Still other Catholic hospitals refuse to offer EC at all.

St. Mary's Hospital, as it happens, is one of the Catholic hospitals that refuse to allow any dispensing of EC. Moreover, the hospital does not permit staff to even discuss EC with patients like Sally, citing another two of the ERDs.

Under a new state law taking effect in six months, St. Mary's and all other hospitals in this state (including Catholic ones) will be required to offer EC to rape victims. Dr. Gray, a colleague of Dr. Brown's in the emergency department, is happy about the new law, because he believes it is his professional and ethical obligation to serve the patient's medical needs, and he wants to be able to offer EC to patients like Sally. He is upset about what he views as the hospital's violation of his rights to use his own ethical beliefs and his medical training in deciding how to treat patients. (The proposed HHS regulation, it should be noted, does not seem to protect physicians like Dr. Gray, who wish to provide medical treatment, not refuse it, but are stymied by institutional religious restrictions.)

St. Mary's, which opposed the new law, hopes to argue that since it considers emergency contraception to be an abortifacient, it cannot be compelled to obey the law. Administrators of St. Mary's plan to cite the proposed HHS rule which, in seeking to enforce compliance with a longstanding federal law allowing federally-funded hospitals to refuse to perform abortions or sterilizations, seems to leave the definition of abortion open to interpretation.

The regulation, as promulgated, dropped a definition of abortion that had appeared in an earlier draft that had attempted to conflate contraception with abortion by including anything that could interfere with a fertilized egg. But, as the Washington Post reported, supporters and critics alike agreed that the language remains broad enough to apply to contraceptives. HHS Secretary Leavitt, in response to reporters' questions about the proposed rule, acknowledged that there was no definition of abortion and that some medical providers may want to "press the definition" and make the case that some forms of contraception are tantamount to abortion, according to the Wall Street Journal.

Does this mean that state health officials who try to enforce the new state law at St. Mary's - in order to ensuring that all rape victims are offered emergency contraception -- might risk being found guilty of "discrimination" against St. Mary's? Could the state lose all of its federal health funding as a result? Is that really the outcome we should be seeking in federal policy?

If St. Mary's were to be successful in its claim, what would happen to rape victims who need emergency contraception? Should they be expected to go to drugstores to buy it, even though they have just suffered a traumatic attack, may have had their clothes torn and may have been robbed of their purses, their money and their car keys? What if the local pharmacy also objects to emergency contraception? The proposed HHS rule, which purports to be about protecting health providers from having to perform abortions and sterilizations, extends provider conscience protections to pharmacies (and also, it should be noted to a wide variety of other health care institutions, including nursing homes and dentists offices).

Should rape victims be expected to leave St. Mary's and go to a different hospital, again in a traumatized state? What if St. Mary's is the only local hospital?

Conclusions

To hear HHS Secretary Leavitt and his colleagues tell it, the department's regulatory might and funding power must be marshaled behind medical professionals in this country who, they contend, are at serious risk of retaliation, firing or being forced to surrender their medical licenses for exercising their religious consciences. The department's introduction to its proposed rule on provider conscience states, "There appears to be an attitude toward the health professions that health care professionals and institutions should be required to provide to assist in the provision of medicine or procedures to which they object, or else risk being subjected to discrimination." The Department's commentary, however, did not supply a single example of a health professional who actually had been discriminated against.

Secretary Leavitt claimed at his press conference releasing the proposed regulation that "there is nothing in this rule that would in any way change a patient's right to a legal procedure" and that "this regulation does not limit patient access to health care."

But, as the story of Sally, Dr. Brown and St. Mary's Hospital has demonstrated, that would not be the case. In fact, the proposed HHS rule has the potential to seriously undermine the already fragile balance between providers' rights and patients' rights in the American health care system. It would tip the scales far over in the direction of objecting health providers, and leave patients at risk of going without needed medical information and care. It would allow providers' personal moral beliefs to come before patients' rights and would take American health care in the opposite direction from "patient-centered care."

Recommendations

Clearly, the proposed HHS rule should be withdrawn. It is both unnecessary and overreaching in its broad interpretation of those existing statutes.

But I also recommend that your council consider ways in which public policy could more strongly protect patients' rights and access to care, without unduly burdening individual health practitioners who have moral objections to providing certain medical services. What would be some ways of doing this?

• Patients' right to informed consent must be paramount. Patients must be informed of all potential treatment options so that they are able to give fully informed consent, based on medical recommendations and the patient's own ethical or religious beliefs.
• Acute care hospitals and any other health facilities that are licensed to serve the general public and receive patients needing emergency care must be required to provide such care immediately. When time-sensitive emergency care is needed -- such as for rape, an ectopic pregnancy or a miscarriage - a hospital must be required to provide it immediately on site.
• The ability of non-objecting health practitioners to fulfill their duty to their patients must be safeguarded. Physicians and other caregivers must be guaranteed the right to discuss all treatment options with patients, regardless of whether those options are permitted at the hospital or other health facility, and must be able to assist patients in obtaining desired treatment at alternate facilities.
• When health institutions serving the general public have treatment restrictions based on religious or ethical principles, they should be expected to disclose those policies to patients and individual health providers
• For non-emergency care, referrals to alternate practitioners or facilities must be made if treatment is being refused.