This week, President Obama begins his assault on centuries of legal precedent and medical ethics, pushing forward in his effort to roll back regulations that protect physicians’ rights of conscience. The regulations prohibit recipients of federal funds from coercing professionals to perform services that violate their conscience, requiring certification that recipients of tax dollars neither discriminate against professionals of conscience, nor coerce professionals to perform services that violate their conscience. While Obama’s strategy to upend these protections threatens many professionals (those sought to administer same-sex fertility treatments, assisted suicide, etc.), perhaps the most vulnerable in the immediate future will be America’s pro-life OB-GYNs.
The physician’s conscience is often the last line of defense for the vulnerable and therefore is the target of many political battles. The genesis of the immediate conscience rights battle is not well publicized. In October 2007, pro-abortion advocates from around the world met at the Women Deliver Conference in London to determine how to most efficiently roll out abortion on demand worldwide, whether through United Nations affiliated programs or otherwise. The U.S. had a large presence, with leaders from numerous pro-abortion organizations in attendance. As observed by conference participants, laws protecting rights of conscience in the various sovereign nations — such as our cherished Hyde-Weldon Amendment — are perhaps the greatest obstacles throughout the world to liberal abortion policy. In the United States, hundreds of years of common law tradition — and that pesky U.S. Constitution — thankfully stand in the way.
Though our law requires the government to respect the physician’s right of conscience, the limits on discrimination by professional associations is less clear. It seems the pro-abortion forces are ready to test these waters. Within two weeks of the Women Deliver Conference, the American College of Obstetricians and Gynecologists ("ACOG") issued Ethics Opinion #385 calling on OB-GYNs to disregard their medical, moral, ethical or religious objections to abortion by instructing them to perform or refer for abortions.
Almost in tandem with the release of ACOG’s Opinion #385, the American Board of Obstetrics and Gynecology ("ABOG") released its 2008 Bulletin for Maintenance of Certification. The Bulletin provides that a physician may have certification revoked, or be denied certification, if the physician violates “ACOG rules or ethics principles,” presumably to include Opinion # 385. Thus, though ABOG is the certifying body, ABOG may reference ACOG to determine standards for ethical behavior. The workings of these two organizations determine who is certified and who is decertified.
Under ACOG’s guidelines, a physician who chooses to obey conscience (over the dictates of the few individuals who make up the ACOG Committee on Ethics) risks being accused and found guilty of "unethical" conduct. Deemed unethical, the physician could then face a loss of Board certification . Loss of board certification will almost certainly result in a loss of hospital privileges, and therefore, a loss of livelihood and career — for refusing to perform or promote abortion.
With these pronouncements of ACOG and ABOG, the American Association of Pro-Life OB-GYNs ("AAPLOG") smelled blood in the water: their own.
The actions of ACOG and ABOG raised the specter that the country’s 2000-plus pro-life OB-GYNs could be decertified and effectively put out of business, wondering how to feed their families. The message was loud and clear; Act according to your convictions, and you risk losing your career.
Thus began the push-back that would culminate in the issuance of regulations to insure that federal law protects pro-life OB-GYNs — and others with a conscience — who practice with entities receiving federal funding.
On December 7, 2007, dozens of civil rights organizations sent a letter to ACOG requesting that the attack on pro-life OB-GYNs be stopped through withdrawal of Opinion #385. Then, in March 2008, I and 15 Members of Congress followed up with a written request to ACOG for clarification that Opinion #385 would not result in decertification for pro-life OB-GYNs, in defiance of the Hyde-Weldon Amendment that we passed in 2004. Moved to action by this sequence of events, former Secretary Leavitt sent a written request for clarification as well, citing "an environment in the health-care field that is intolerant of individual conscience, certain religious beliefs, ethnic and cultural traditions and moral convictions."
ACOG finessed all such friendly requests, and ACOG Opinion #385 still stood. The Bush Administration saw that it had no choice but to issue regulations to safeguard rights of conscience.
Moving with the full knowledge that ACOG and ABOG have taken unprecedented action to threaten pro-life OB-GYNs with decertification, the Obama administration is signaling its approval. In a what is little more than a formality required by law, Obama is requesting input from the public over the coming days about the proper role of conscience in a free society. The question: Should government eliminate the specified protections for a professional who could be compelled to act against conscience — even where the action is the taking of an innocent human life? Given the selection of Kathleen Sebelius to lead HHS, we can bet that the Obama answer to the Obama question will be a "Yes."
For the pro-life OB-GYN, there are two patients to consider in the case of a confirmed pregnancy: mother, and child. With this in mind, the physician must remain true to the Hippocratic Oath that has guided the medical profession for more than 2,000 years, the first admonition of which is "do no harm." Though long forgotten, the original Hippocratic Oath likewise contained an unequivocal prohibition against abortion. Therefore, the Obama regulation repeal would, in effect, permit punishment in the form of threatened or actual de-licensure for physicians who follow their Hippocratic Oath.
Loss of freedoms is one tragedy, but there is another; The price of this policy will surely be paid by the nation’s women. If approximately 2,000 pro-life OB-GYNs hold fast to their conscience and are consequently put out of service, then the nation’s critical OB-GYN shortage will be greatly exacerbated, particularly in underserved areas. Likewise, religiously-affiliated hospitals could have no choice but to close their doors. Ironically then, in this quest to subdue pro-life forces within the medical community, the clear casualty — in addition to millions of unborn — is women’s health care.
Despite our minority status, Republicans in the House are not a passive lot. Last fall, I and 125 Members of Congress sent a letter to the Bush Administration urging the issuance of regulation to implement the conscience protections. President Bush did the right thing. So should Obama: Rather than politicizing medicine as a token favor to his friends at Emily’s List, Obama should put fundamental freedoms and women’s health care first.