Secular Coalition Says No Middle Ground on Patients Rights -- Rescind the "Conscience Clause" Rule

The Obama Department of Health and Human Services (HHS) has proposed to rescind the Bush-era "conscience clause" rule that encourages healthcare workers to put their religious needs before the medical needs of patients and also encourages religiously motivated recipients of federal funds to compromise federal programs. However, when HHS proposed to rescind the rule, it also asked for comment "on whether the objectives of the ... rule might also be accomplished through non-regulatory means."

The Secular Coalition for America opposed the adoption of the original rule. Now in a comment letter on the rescission proposal the Secular Coalition has told HHS -- completely rescind the rule. There is no middle ground.



March 18, 2009

Department of Health and Human Services
Office of Public Health and Science
Attn: Rescission Proposal Comments
Hubert Humphrey Building
200 Independence Avenue SW
Room 716G

Washington, DC 20201

Re: RIN 0991-AB49: Rescission Proposal

Dear Acting Secretary Johnson:

The Secular Coalition for America[1] applauds the proposal of the Department of Health and Human Services to rescind the final provider conscience clause rule issued December 19, 2008 ("final rule").[2] However, by asking how "the objectives of the December 19, 2008 final rule might also be accomplished through non-regulatory means", [3] the request for comment in the rescission proposal demonstrates that the Department still doesn't understand the underlying problems with the rule.

The final rule must be withdrawn for the following reasons.

  • A patient's rights to receive health care in accordance with his or her conscience and medical needs must not be imperiled by obeisance to the supposed interests of health care providers and volunteers.
  • Implementation of federal programs must not be thwarted or compromised by the religious beliefs of those who have chosen to take federal funds.

Religiously Motivated Providers Should Not be Permitted to Endanger the Life and Health of Others - Particularly of Those Who Do Not Share Their Beliefs

Under the rule as proposed, and as adopted, patients and their families could be imperiled by the denial of medically necessary care, including in situations such as those described below.

  • An obstetrician could refuse to provide a woman suffering from postpartum psychosis with information about her condition or a referral to a physician who could treat it based on the obstetrician's opposition to psychiatric care. The consequence of such a refusal could endanger the health and possibly the life of the mother and her child.
  • An emergency room worker could refuse to counsel a survivor of rape about the availability of emergency contraception, or the need to make a timely decision about its use, exposing her to the physical and psychological trauma of being impregnated by her rapist and denying her the right to make a decision according to her own deeply-held beliefs.
  • An operating room assistant could decline to perform a necessary blood transfusion during surgery, jeopardizing the patient's life and health, and denying his right to medical care that honors his advance directive.

Following the rescission of the final rule, the Department must not pursue its objectives by non-regulatory means because to do so could imperil the lives and health of patients.

Religiously Motivated Recipients of Federal Funds Should Not Be Permitted to Thwart or Compromise Federal Programs

Federal programs funding health care, training of health care workers and research on medical issues exist because the citizens of this country, those with a god belief and those without, share a belief that we must - as so eloquently stated by President Obama - "care for each other and work to ease human suffering".[4] To permit a health care worker who has been assigned to perform functions essential to a federally funded program to refuse to meet his or her responsibilities is to permit that person to thwart or compromise the program.

Now that the President has lifted the ban on federal funding for embryonic stem cell research, the Department must not pursue non-regulatory means to impose the objectives of the final rule because to do so would permit persons opposed to embryonic stem cell research to apply for positions on research teams and then refuse to perform the duties assigned them. For example, a person responsible for obtaining informed consent for the donation of embryos or gametes generated in excess of clinical need in the course of treatment might refuse to do so, delaying the team's procurement of materials and, thus, its research.

Following the rescission of the final rule, the Department must not pursue its objectives by non-regulatory means because to do so could compromise the implementation of federal programs.

The Final Rule Must Be Thoroughly Repudiated and Rescinded in Its Entirety  

Instead of looking for ways to accomplish the objectives of the final rule by non-regulatory means, the Department should repudiate the final rule and rescind it in its entirety.  There is no middle ground.

Ronald B. Millar
Acting Director
Secular Coalition for America

[1]  The Secular Coalition for America is the national lobby representing the interests of atheists, humanists, agnostics, freethinkers and other nontheistic Americans. The members of our coalition are the American Ethical Union, American Humanist Association, Atheist Alliance International, Freedom From Religion Foundation, Institute for Humanist Studies, Camp Quest, Military Association of Atheists and Freethinkers, Secular Student Alliance, and Society for Humanistic Judaism.

[2]  74 Federal Register 10207 (2009).

[3]  74 Federal Register 10207 at 10210.

[4] Remarks of President Barack Obama - As Prepared for Delivery, Signing of Stem Cell Executive Order and Scientific Integrity Presidential Memorandum, Washington, DC, March 9, 2009,

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