Whose (Health Care) Conscience Is It, Anyway?

By Janet Chung

Originally published by Huffington Post

More and more, we live in a world where the religious beliefs of those who want to refuse health care services trump the rights of patients who deserve and need those services. This is untenable. The time has come to return the focus to patients, and an important first step is to protect those health care providers whose consciences tell them that they are obliged to provide health care at least as much as we protect the rights of their colleagues to refuse it.

How did we get here? It's important to understand that this state of affairs has been a long time coming. The U.S. Supreme Court's now notorious decision in Burwell v. Hobby Lobby is only the latest salvo in an ongoing campaign that makes health care providers' beliefs—not patients' needs—the basis for determining what services will be offered.

A mainstay in this assault is a fresh barrage of laws containing so-called "conscience clauses," designed to give health care providers the right to refuse to offer services that they personally disapprove of, regardless of patient needs. In recent years, such state and federal laws have been expanding their reach in troubling new ways. Where they once focused on the right of providers to refuse to participate in specific services, primarily abortions and sterilization, they are now even broader in scope. For example, pharmacists in many states have the right to refuse to dispense any medication—and some have exercised that right to deny women emergency contraception based on the categorically false belief that such contraception causes an abortion.

Longstanding exemptions for not just individual providers, but also religious institutions further widen the gap between what patients need and what providers are required to offer. For example, in my home state of Washington, the insurance code provides that religiously sponsored plans can opt out of including legally mandated insurance benefits in their plan offerings, based on conscience. Elsewhere, hospitals that generally are required by law to provide emergency contraception to patients who have been sexually assaulted may refuse to do so on religious grounds. Similarly, even before the Hobby Lobby decision, religious institutions, such as houses of worship, were exempt from the Affordable Care Act's contraceptive coverage requirements, and nonprofits with religious objections to ACA coverage requirements could refuse as well. The Hobby Lobby Court then further extended this doctrine, adding for-profit employers with religious objections to the list of entities exempt from providing otherwise mandated health care benefits.

While the Hobby Lobby decision focused on contraceptive coverage, it would be a mistake to think that its reach stops there. By recognizing a for-profit corporation's religious free exercise rights, the Court opened the door to religiously-based refusals of services of all sorts. For example, some providers object to aid in dying, or providing health care services of any kind to LGBT patients. Some religions proscribe vaccinations or blood transfusions. What's more, courts, not wanting to become arbiters of spirituality, do not question the sincerity of claims of religious belief. Thus, a religious objection might just prove to be the trump card justifying denials of such health care services.

This situation is unacceptable. The time has come to accord legal protection to other forms of "conscience." Providers should be protected if their religion or conscience compels them to provide care, not only when they choose to refuse it.

This broadened frame for conscience clause protection is especially needed in light of the precipitous rise in religiously affiliated health care systems; the number of Catholic-run acute-care hospitals increased by 16% from 2001-11. These hospital systems usually come with accompanying restrictions on services based on religious institutional doctrine. To comply with the Ethical and Religious Directives for Catholic Health Care, a Catholic-affiliated hospital may require its employees, as a matter of policy, not to provide certain services, including non-emergency pregnancy termination, medication for aid in dying, and infertility treatment. These prohibitions can extend not only to employees of the hospital itself, but also to affiliated clinics, hospices, physicians with admitting privileges—even separately owned medical practices that lease office space from a religiously affiliated health system. Studies of physicians at religiously affiliated hospitals have found over half (52%) of ob-gyns and one in five primary care physicians experienced conflict between the care they wanted to provide and hospital policies.

Institutional policies should not be allowed to prevent health care professionals from exercising their professional judgment, to practice evidence-based medicine, and to provide comprehensive care to their patients.

At best, privileging the conscience of providers who refuse care results in inconvenience to the patient and delay of care. At worst, it results in a complete barrier to timely access to health care -- such as when there is a time-sensitive medication that a pharmacist refuses to provide, or a procedure that no hospital in the region will provide.

It is time to recognize the hypocrisy of protecting only the moral beliefs of those providers who use their beliefs as a basis for refusing to provide care. We need to also protect the providers who believe it is their duty to provide care, and thus, protect the patients who need care. A core ethical obligation for medical professionals is nonmaleficence—do no harm. That form of conscience deserves protection, too.

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Janet Chung is Legal and Legislative Counsel at Legal Voice, where she works to advance reproductive and economic justice for women through advocacy, litigation, and legal rights education. She is a Ford Foundation Public Voices Fellow with The OpEd Project.

A Step Backward for Sexual Assault Survivors

By David Ward

For years, sexual assault survivors and advocates have worked to change the legal system’s response to sexual violence. We’ve fought to ensure that survivors of sexual assault are able to report crimes without fear that their conduct will become the focus of the case. But a ruling last week by the Washington Supreme Court threatens to move us backward.

In its decision in the case of State v. W.R., the Court reversed 25 years of Washington precedent concerning the burden of proof in rape cases. And the ruling raises serious concerns that it will become even harder to obtain justice for survivors of sexual assault, which is already one of the most underreported and under-prosecuted crimes.

To understand the impact of the ruling, it helps to understand how the law has changed in Washington over the years.

Washington significantly reformed its sexual assault laws in 1975. Before then, rape was defined as sex “committed against the person’s will and without the person’s consent.” As a result, the State had the burden in rape cases of proving that the victim had not consented—a standard that focused on the victim, rather than on the perpetrator.

But in 1975, the Legislature changed the law to remove the victim’s non-consent as an element of the crimes of first or second degree rape. Instead, the Legislature required the State to prove the use of forcible compulsion by the defendant. This change in the law was intended to ensure that the focus in rape cases would be on the defendant’s conduct, rather than on the victim's.

In 1989, the Washington Supreme Court ruled that if a defendant asserted consent as a defense to a charge of rape by forcible compulsion, the defendant had the burden of proving this defense by a preponderance of the evidence. The Court reaffirmed this ruling in another case in 2006.

But by a 6-3 margin last week, the Washington Supreme Court reversed its previous rulings. The Court held that if a defendant is charged with rape by forcible compulsion and asserts that the victim had consented, the State must now bear the burden of disproving the victim’s consent beyond a reasonable doubt. The defendant will no longer have any burden of proving a defense of consent.

Legal Voice joined with our allies at the Washington Coalition of Sexual Assault Programs, the King County Sexual Assault Resource Center, and the Sexual Violence Law Center to submit an amicus brief to the Supreme Court in this case. We argued that requiring the prosecution to disprove that the victim had consented would turn the clock back by shifting the focus of rape cases to the victim's actions, rather than on the defendant's conduct.

Justice Susan Owens agreed with our argument in a powerful dissent, which was joined by Justices Steven González and Charles Johnson. The dissent noted that “placing the burden on the State to disprove consent wrongfully puts the victim’s actions and reputation on trial” and would “invalidate years of work undertaken to properly refocus our rape law.”

The dissent also warned that “if victims believe the trial will focus on their behavior rather than the perpetrator’s actions, they will be less likely to report the rape” and that “if they do report the rape, they may feel that they themselves are on trial when the focus shifts to their actions rather than the crime against them.”

Needless to say, we agree with the dissent and we are disappointed by the Court’s ruling. We cannot go back to the days when rape trials focused on survivor’s conduct rather than on the defendant’s actions. The ruling makes it all the more necessary for us to keep working on all fronts to ensure that the law provides justice for sexual assault survivors and that their voices are heard.

You can help by encouraging friends, family, neighbors, colleagues, and students to sign up to receive our messages and together we can work to change our culture and how survivors of sexual violence are treated.

David Ward is Legal & Legislative Counsel at Legal Voice, where his work focuses on gender violence, family law, and LGBT rights.

Your Voice, Your Choice, Your Vote

On August 26, 1920, when the 19th Amendment secured American women the fundamental right to vote, women's lives were greatly changed. The women who came before us rallied behind a shared understanding that women are equal citizens, and stopped at nothing to secure our right to vote.

So today, we ask you to use that right that women fought so hard to give us. The easiest way to ensure your values are prioritized by your local and national government is by voting into office legislators who stand with you on important issues.

Ask legislators and candidates, Where do you stand on ensuring...

...women have paycheck fairness? Do you support legislative improvements, including:

• requiring employers to demonstrate that wage disparities are based on factors other than sex? 
• prohibiting retaliation against workers who inquire about their employers' wage practices or disclose their own wages? 
• strengthening penalties for equal pay violations? 

...providers and patients together decide what is best care, without interference from restrictive hospital system policies controlled by religious directives?

• If your local hospital system and your providers are contemplating a transaction with a religious-based health system, what limitations will the legislator or candidate agree to? Are they committed to providing access to a full range of comprehensive reproductive health care and counseling, nondiscrimination against LGBT patients, and—for Oregon and Washington—counseling and referrals for requests for information about the Death with Dignity Act? How are they demonstrating that commitment? 

...businesses don't have license to discriminate based on their own beliefs and to deprive patients of access to insurance coverage to comprehensive health care services? Are you looking for ways to guarantee:

• employers do not follow Hobby Lobby's example and deprive women of access to basic contraceptive health care? 
• employees' access to other needed services (e.g. HIV treatment, vaccination, infertility treatment) are not subject to the religious beliefs of individual employers? 
• LGBT people will not be discriminated against in access to healthcare services, employment in health care, and other public accommodations? 

...survivors of sexual assault receive justice? Will you work to protect women from:

• the family laws that allow perpetrators to assert parental rights to children who are conceived through rape?
• the school system, which routinely overlooks its obligation under Title IX to address sexual harassment and assault, and to take immediate action to ensure equal educational opportunity? 
• the criminal justice system, which consistently refrains from testing rape kits and allows rapes to go uninvestigated if alcohol is involved?

The issues that matter most to you should also matter to whoever you vote for. For more information about the candidates on your ballot—as well as logistical voting information specific to your area—type your address in the box below. Remember, it's your voice, your choice, your vote. Use it!