Tuesday, September 16, 2008

Religion and Providing Healthcare

Recent developments in the law concerning health care providers put in contrast the conflict between their professional obligations to provide medical care to patients and their right to refuse to provide such services based on personal and religious beliefs. An article entitled “How Should the Law Respond When Health Care Providers' Obligations Conflict with Their Religious Beliefs? Two Recent Developments that Illuminate the Issue” presents the conflict in two parts. The first installment deals with the recent decision by the California Supreme Court in North Coast Women's Care Medical Group, Inc. v. San Diego County Superior Court, 189 P.3d 959, a civil rights lawsuit brought against physicians charged with discriminating against a lesbian patient who sought a fertility treatment. The defendants claimed they were exempt from California’s Unruh Civil Rights Act which prohibits discrimination on the basis of sexual orientation because their refusal to provide fertility treatments to lesbian patients was grounded on their religious convictions. The California Supreme Court affirmed the trial court’s rejection of the defense, holding that neither the federal nor the California Constitution mandates a religious exemption from the Unruh Act’s prohibitions in the context of medical services. The article by Vikram David Amar and Alan Brownstein criticizes the decision for failing to evaluate thoroughly the competing interests at stake, in particular, in failing to address the US Supreme Court case of Employment Division v. Smith, 485 U.S. 660 (1988) that the federal Free Exercise Clause does not protect religious individuals or institutions against neutral laws of general applicability.

The second part of the two part article will address regulations (45 CFR Part 88) proposed by the Department of Health and Human Services (HHS) to protect health care workers from being coerced into violating their religious beliefs by providing medical services that they object to on religious grounds. The proposed regulations seek to set a standard for enforcing “conscience clause” laws enacted in response to Roe v. Wade, 410 U.S. 113 (1973). Congress has enacted several such laws, starting with the 1973 Church amendment (42 U.S.C. 300a7) passed shortly after Roe v. Wade and most recently the 2004 Weldon amendment (Sec. 508(d) of Public Law 110-161, 42 U.S.C. 238n). See the Congressional Research Service Report The History and Effect of Abortion Conscience Clause Laws. The idea of the conscience clause is to protect doctors and other healthcare providers (such as pharmacists) who refuse to perform abortions or fill prescriptions for emergency contraception from discrimination. When first proposed, the regulations had language defining abortion as the termination of a pregnancy from the point of conception so that any form of contraception, including the "morning-after" pill and IUDs, that interfere with the implantation of a fertilized egg would have been categorized as a form of abortion. That language was removed from the proposed regulations which are in a 30-day comment period ending September 25 at consciencecomment@hhs.gov. A public comment submission form is online. Posted comments to the Provider Conscience Regulation are available at regulations.gov, a direct link to the conscience clause comment site.

See the BLS Library catalog for additional reading on emergency contraception including When Sex Counts: Making Babies and Making Law by Sherry F. Colb (Call #KF3760 .C65 2007) and Governments Worldwide Put Emergency Contraception Into Women's Hands: A Global Review of Laws and Policies by Erica Smock (Call #HQ766.5.U6 G68 2004).

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