Saturday, February 28, 2009

Obama to Revise or Rescind Bush Conscience Clause?

It was a given that the Obama Administration would attack the "Bush Conscience Clause." And that process has begun. But it may a revision rather than a rescission, and indeed, perhaps one I could support. From the story:

The administration took the step because the regulation was so broadly written that it could provide protections to health care workers who object not only to abortion but also to a wide range of health care services, said the HHS official, who asked not to be named because the process had just begun.

"We've been concerned that the way the Bush rule is written it could make it harder for women to get the care they need. It is worded so vaguely that some have argued it could limit family planning counseling and even potentially blood transfusions and end-of-life care," the official said. After a 30-day comment period, the regulation could be lifted entirely or it could be modified to make the protections more specific, the official said.

"We support a tightly written conscience clause. We recognize and understand that some providers have objections about abortion, and we want to make sure that current law protects them," the official said. "We want to be thoughtful about this."
I too thought that the Bush Regulation was too broadly written--for example, it could be construed to apply to futile care impositions--and was disappointed in its lack of nuance. Thus, if the rule were revised, rather than rescinded, so as to protect health care workers who refuse elective procedures, e.g., not needed to protect the life of or to prevent serious harm to the physical health of the patient, and moreover, to ensure that it is the procedure (such as assisted suicide) and not the patient that is objected to, a better federal conscience clause could come out of this.

However: I think there is a more than even chance that the reasonable tone is all politics and will not survive the actual rule revision process. I will keep an eye on this as the bureaucratic process grinds slowly forward.



At February 28, 2009 , Blogger Mia Zagora said...

If it's the President himself who is going to rescind or revise this law and not Congress, how can the people make their voices heard? When you write to the President, you just get a form letter back saying "thank you for writing".

At February 28, 2009 , Blogger Wesley J. Smith said...

Mia: Thanks for stopping by. There are three ways to revise/rescind the Bush conscience regulation. One is via regulation, in which the Dept. of Health and Human Services, or an agency within its purview, enacts a "regulation" intended to effectuate a law. In a sense, this is putting in the details of how a broad statute is to be applied and enforced. That isn't very democratic, although anyone can comment to the Dept. regulators. But to know what is up, you need to see what is in the Federal Register, which most people have never even heard of.

The second way is for a legislative overturn. I suspect this will also be applied but more broadly to give Obama cover. Obviously, should a bill come up, you can make your voice heard to your representative and senators.

The third way is to be overturned by a court. The Bush rules have been so attacked in court. The public has no influence here since judges (are supposed to) apply the constitution and/or relevant statutes against the regulation to make sure they pass constitutional and legal muster. Very arcane stuff here.

At February 28, 2009 , Blogger Mia Zagora said...

Thank you for answering my question, Mr. Smith. Do you know if there are any agencies speaking for the physicians and other health care workers (pharmacists, nurses, nurse practitioners, etc.) as far as keeping their rights intact?

I can see how this will affect the availability of OB/GYN doctors and other health care workers if they have to bow to the pro-abortion mindset. There will certainly be fewer OB/GYNs.

I wonder if this could also have an effect on crisis pregnancy centers where they also have doctors, nurses and ultrasound technicians who volunteer their time? I would imagine this would certainly happen if they receive any type of federal money or even tax breaks?

At February 28, 2009 , Blogger Wesley J. Smith said...

Mia: When the Notice of Proposed Rule Making is published in the Federal Register, there will be a comment time period. Many organizations and individuals will opine. Some mainstream medical groups, like the Ob/gyns will ask NOT to protect dissenting medical professionals. I am sure there will be other groups and societies that will request protection, and also comment on various aspects of the proposed rule. The more people comment in favor of conscience, the less likely it will be that the bureaucrats will totally gut the rule. Moreover, the bureaucrats have to review all of the input, and so the more there is, the more time it takes.

However, I expect the Congress to do the real dirty work.

At February 28, 2009 , Blogger Ianthe said...

That phrase, "end-of-life," as in "end-of-ife care" here, has GOT to go. The minute "end of life" gets talked about, lives get ended.

The government doesn't even BELONG in this. It's like abortion, which I don't believe the law should be involved in at all, not because I think there is a "right" to abortion, but because if we've got enough people wanting it for it to be an issue, we're already sunk. If we need the government to protect us, and "dissenting physicians," with "conscience clauses," we are too far gone and beyond help. Government is supposed to do certain things, like have a military, maintain the Lincoln Monument, see that the Secret Service protect the president, maybe buy china for the White House. If we need it to tie our shoes for us, which apparently we do, we're finished. Did government make the medical establishment as amoral as it has become? If it did, it was by our having become too irresponsible all around not to have needed the government to tie our shoes for us, and since the government reflects the way we are, how is it then supposed to make the medical establishment behave? If it didn't, same question. If we're such a mess that those of us who are doctors don't know how and are not willing to be ethical, how is the government that reflects us going to help straighten out the situation? If we really want them to behave, and they won't, the best way for our government to be useful to us is to arrest them and put them in jail. End of story.

At March 02, 2009 , Blogger HistoryWriter said...

If some doctors don't want to perform lawful procedures and some pharmacists don't want to dispense lawful drugs on a doctor's prescription, then they ought to be looking for other careers. My pharmacist can be a Scientologist for all I care, but the day he refuses to fill my doctor's prescription because of his "conscience" should also be the day he should lose his license.

At March 03, 2009 , Blogger miller_schloss said...

Those who are fighting the conscience clauses keep pulling out the "IT WILL KEEP WOMEN FROM GETTING BIRTH CONTROL!"scream-fest. Since the majority of Americans favor birth control, even most of those who are against abortion, this gets public support behind rescinding conscience protection. But it's vital for such rulings to allow for the conscience rights of pharmacists to refuse to dispense potentially abortifacient birth control. So while I can see your concern that the regulation is too broadly written, I am afraid that a narrow re-writing, while possibly closing the futile care loophole you pointed out, will also take care to eliminate conscience protection for pharmacists under the guise of keeping the sacred access to birth control.

Chances are the whole thing will just be revoked rather than rewritten, though.

Becky Miller
RI Right to Life

At March 03, 2009 , Blogger Mia Zagora said...

"If some doctors don't want to perform lawful procedures and some pharmacists don't want to dispense lawful drugs on a doctor's prescription, then they ought to be looking for other careers."

Just because something is "lawful" doesn't mean it is "moral". Abortion is almost never performed to save a mother's life. In fact, I can't think of a single instance where a late-term abortion should be performed to preserve a mother's life. A D&E is stressful on the mother. The current practice of inducing pre-term labor and letting the child die of exposure does nothing for the mother and is infanticide.

Abortion is a procedure done simply for the sake of convenience. I would put abortion on par with cosmetic surgery. Using your "logic" every physician should also know how to do a nose job. Hey, cholecystectomies are "lawful" - maybe we should make every physician learn that as well? Just utter nonsense.

At March 03, 2009 , Blogger Ianthe said...

Mia: Don't mind HistoryWriter, Mia. From his pen name and his posts here you can see that he thinks he's entitled to say how things have been, are, and should be. HistoryReader would imply greater concern for wisdom. He's a sad case.

At March 03, 2009 , Blogger Ianthe said...

Right because regard for life and morality are supposed to be subservient to the latter and the was not created to serve the former, in the minds of those who've got it backwards. By following their own conscience re life and morality in favor of life, doctors and pharmacists ARE being professional and doing what they were licensed to do. The saying that hard cases make bad law somewhat applies here. But basically just because I have a legal right to get an abortifacient prescription prescribed and filled doesn't mean that every single doctor and pharmacist has to prescribe and fill it.

At March 03, 2009 , Blogger Kathy from Kansas said...

Question: How will WE KNOW when the 30-day comment period begins and where to mail or email our comments? It's not as if the "mainstream" media will be informing us! I am new to this site, but have just subscribed. Will you be sending out an alert to us about it?

By the way, Dr. Smith, I love your books and those of Dr. Leon Kass. I don't know what we'd do without you. I'm so glad to have discovered this website!

And I'm very glad that you're on top of this issue. Some might call me scrupulous, but I take my individual freedom of conscience very seriously. I have been frustrated for my entire adult life that I've been unable to find a completely pro-life health insurance plan. I've always hated knowing that my insurance premium dollars help pay for other people to have procedures I firmly believe are morally wrong.

All of this looks to get massively worse under the Obama administration. For me, the most personally troubling aspect of FOCA is its overriding of individual conscience, both in what it would force taxpayers to pay for, and most especially in the way it would eventually turn all the medical professions into monolithic bastions of the Culture of Death.

At March 04, 2009 , Blogger Wesley J. Smith said...

Kathy from Kansas: It will be reported in the Federal Register. I don't get it but know people who do. When I find out, I will post it on the blog.

At April 05, 2009 , Blogger Sacred Heart Adoration said...


Rescission Proposal: 0991-AB49

On April 9, the 30 day comment period will end in which citizens can voice their concern of President Obama's rescission of the conscience clause. This clause allows medical professionals and organizations (such as hospitals) to choose not to provide services which are contrary to their religious beliefs or missions. This specifically pertains to the performance of abortions and sterilizations. Information on the clause and to make a public comment can be found at

The conscience clause has been in effect since the 1970's, for over 30 years. During that time, abortions and sterilizations have grown in both demand and availability, being readily available throughout the country even in rural areas. Therefore, the existence of this regulation has in no way limited the ability of all Americans to receive these services if they choose.

This clause has, however, protected the freedom of both medical professionals and medical organizations (a corporation is legally a "person"). It allows those individuals to conduct their medical work without being forced into any conduct that would contradict their faith views. It allows hospitals with faith-based missions to continue to practice as well. Note that Catholic hospitals are the largest provider of hospital services in the United states. Then consider other hospitals with faith based missions, and you can see the import of this clause to allowing these organizations to exist, as well as see that this clause has in no way limited availability of abortion services.

There is an old saying "if it ain't broke, why fix it?". This is true here. After 30 years, this amendment is well tested and has not inhibited the quality of health care provided to Americans.

So why now is the Obama administration attempting to rescind this clause? We don't know, but clearly it is not for the purpose of improving health care.

What will be the results if this is rescinded? Catholic hospitals across the country, the largest provider of hospital services in this nation, will close down. Medical professionals of all faiths will risk losing their job due to religious discrimination or have to willingly give up their job. So the quality of healthcare IN EVERY SINGLE AREA OF HEALTH will be drastically and negatively affected, as well as religious discrimination and persecution institutionalized in our healthcare system. And all done to force mandatory abortion services that are not even needed because sufficient facilities and personnel exist to provide these.

So why now is I the Obama administration attempting to rescind this clause? It makes absolutely no sense.


Our country was founded upon religious freedom. To repeal this clause and force individuals as well as medical organizations to conduct acts against their religious beliefs or corporate mission statements is discrimination. There are sufficient providers of abortion and sterilization services across the country, even in rural areas; it is clearly not necessary to force medical professionals and organizations to conduct these services. This clause has been in effect for over 30 years without causing any undue hardship to the American people. Therefore, there is no sound, need-based reason for rescinding this clause. The reason can only be discrimination against people of faith. In rescinding this clause, our government is potentially ruining our entire health care system simply for the purpose of making abortion mandatory (note, it is already easily available). Even citizens with no particular faith belief can see how their overall health care will be adversely affected by this action. This defies all logic and so can only be hate based.

It is important that every American, whether or not of any faith belief, stand up and insist this clause remain in effect for the continued quality healthcare of all American citizens IN ALL FIELDS OF MEDICINE. Don't let a political agenda destroy our healthcare system.

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ENTER 0991-AB49 into Search Documents
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