Posted on April 23, 2018 at 3:00 PM
The First Amendment of the United States Constitution states that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof (O’Brien 2005). In recent news, the U.S. Department of Health and Human Services created a new division called the Conscience and Religious Freedom Division. This change grants healthcare workers the option to be involved or not be involved in care for patients that contradicts with their personal religious or moral beliefs (Pear 2018). The policy change creates a legal and ethical dilemma with at least two sides.
Arguably, prior to this newly outlined protection, healthcare workers were not able to freely exercise their religious beliefs and therefore challenges their First Amendment right. President Trump states that “religious people would no longer be bullied by the federal government because of their religious beliefs” (Pear 2018).
On the other hand, it may be debated that this new provision challenges the First Amendment from another angle because it’s respecting an establishment of religion, which as a result, may discriminate against anyone that does not share a religious belief with the medical professionals they interact with. At the top of the list may be women and the LGBTQ community, which is a recognizable violation of the Fourteenth Amendment and Equal Protection clause (Menikoff 2001, 25).
In the days following this news a major question was: what does this mean for women’s rights? Roe v. Wade established that based on the right to privacy it is a woman’s legal right to have an abortion (Menikoff 2001, 53). Similarly, obstetricians/ gynecologists may choose to no longer prescribe contraceptives and if they do, the pharmacist may not have to fill the prescription if it contradicts their beliefs. There is the right to privacy and barriers already in place for women to have access to an abortion or contraceptives such as Plan-B. One roadblock mentioned was resources being unavailable to women within a reasonable radius. Additionally, under the Religious Freedoms Restoration Act, an employer does not need to provide coverage for contraceptives. Since companies are tried as a “person” as seen in Burwell v Hobby Lobby this may allow employers to run wild and could even lead to insurance companies picking and choosing what procedures they cover (Liptak 2014). Or, in an extreme example what if there are not any “in-network” physicians that are aligned with the patient’s beliefs?
A physician has duties that arise from the patient-physician relationship, particularly surrounding patient abandonment. The relationship may be terminated by either the patient or the physician at any time. However, if the physician ends the relationship then tort law would require the physician to not terminate the relationship at an unreasonable time. An example of this under the new policy could be if a doctor is treating a gay male or female suddenly decides that since they now have government backing, they no longer must treat this patient. It may be argued that physicians are already refusing to treat certain patients. Prior to now it was a best practice for physicians to refer a patient to another medical professional in order to continue care and if not there may be legal ramifications for patient abandonment. If the physician chooses to terminate the relationship based on conflicting religious or moral beliefs it is unlikely they will feel required to provide a referral.
Patients also have the right to be treated in an emergency situation and this right is protected by the Emergency Medical Treatment and Labor Act (EMATLA) which shields against discrimination of any kind (Menikoff 2001, 368). Meaning, even if there is not a prior patient-relationship the patient must be treated based on the physician’s contractual agreements. Violating this contract may result in patient abandonment or malpractice. What will happen if a pregnant woman is having complications that require an abortion and the on-call physician or the emergency room physician doesn’t share the same religious beliefs? Will the new policy impact EMATLA?
The creation of the Conscience and Religious Freedom Division is in the infant stages. It is not evident how a policy of this nature will be rolled out if medical professionals begin to utilize their freedom to exercise religious rights. It’s doubtful that this will be carried out in a non-discriminatory manner; and unfortunately, under the new provision it may be irrelevant since medical professionals will be protected. In conclusion, this exemplifies how the bioethics field continues to navigate gray areas. These areas become more undefined as laws and policies that contradict one another are introduced.