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Posted on November 25, 2019 at 11:01 AM

 

The
debate over conscientious objection in health care has been lively since the
passage of the Church Amendment in 1973. 
The dilemma arises as bioethicists, theologians, legislators, and
lawyers have argued over the proper balance between protecting clinician
integrity and the professional obligations of medicine.  Two major developments have made this a big
year for conscientious objection and LGBTQ rights.  One development has been the Supreme Court
hearing of three cases arguing that the word “sex” in the Civil Rights Act can
be interpreted as prohibiting discrimination based on gender identity and
sexual orientation.  Currently, the
legality of discrimination based on these characteristics hinges upon whether
the state in which the event occurred has individually decided to prohibit such
discrimination.  Whether refusing to
treat LGBTQ individuals is federally prohibited is especially relevant because
of a second major development this year in the new “Final Rule” proposed by the
Trump administration for protecting conscientious objection issued by the
Office of Civil Rights in the United States Department of Health and Human
Services in May of 2019.  This Final Rule
significantly expands the scope of who can object, what can be objected to, and
the enforcement mechanisms for organizations that violate federal conscience
statutes.    

            Several states have filed legal complaints against the
proposed Final Rule.  In the complaints,
one concern is that the Final Rule interprets the plain language of existing
federal statutes in very broad terms. 
For example, on the issue of who can object, the rule covers any
individual who performs any action with an “articulable connection to
furthering a procedure.”  This means
someone involved in administrative or transportation activities—not just those
directly involved in the procedure—may invoke conscientious objection.  The final rule also permits clinicians to
object to giving referrals if they feel doing so would make them complicit in
an act they deem morally objectionable and does not consider how objections
cause undue hardships on employers, co-workers, and patients.  The San Francisco complaint reads, “If an
individual were to believe that transgender people should not transition, it
would empower them to refuse to provide any health-related service to a
transgender patient, such as medical bill process or scheduling an x-ray for a
broken leg.  If a nurse were to oppose a
same-sex couple’s marriage, the Final Rule would allow the nurse to refuse to
let one spouse see the other in the hospital. 
If an individual claims that their moral convictions do not allow them
to assist LGBTQQ persons, the individual could refuse to even set up a room
where an LGBTQQ patient would be receiving services.”  In early November of 2019, a federal judge
ruled against the Final Rule, but this is unlikely to be the final word in the
debate. 

            The examples above are not merely hypotheticals; conscience-based
discrimination against LGBTQ individuals in health care has occurred in recent
decades.  In 2001, a fertility clinic in
California turned away a lesbian couple for IVF procedures (Benitez v North
Coast Women’s Care Medical Group)
. 
In 2008, the California Supreme Court unanimously ruled that such action
was discriminatory and ruled in favor of the couple.  However, this ruling was based on
California’s Unruh Civil Rights Act, which prohibits discrimination based on
sexual orientation and gender identity, so it is unclear how the case would
have been decided in states without similar augmentation to the federal Civil
Rights Act.  In 2015, a pediatrician
conscientiously objected to treating the baby of a lesbian couple (Jami
Contreras and Krista Contreras), stating “After much prayer following your
prenatal (visit), I felt that I would not be able to develop the personal
patient doctor relationship that I normally do with my patients.”  In 2018, the physician of a bisexual male
patient conscientiously objected to prescribing the HIV preventative PrEP
because he did not want to “enable immoral sexual behavior.”  The objection caused a significant delay in
the patient receiving the prescription (~4 weeks), but another physician at the
clinic eventually stepped in and prescribed the medication. 

             The intensity of
debate around conscientious objection and LGBTQ rights is only likely to
increase as technological advances raise even more medical possibilities for
this patient population.  Puberty
blocking medications, hormone therapy, gender-affirming operations, and even
coming fertility technologies such as uterine transplants for transwomen and
the use of synthetic gametes for same-sex couples to have biologically related
children are all likely to keep this an active topic for bioethics debate.     

 

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