Health-care conscience laws infringe on the rights of others

When Tamesha Means’ doctors sent her home – twice – even though she was actively miscarrying, bleeding profusely, and had a fever, they most likely committed malpractice.

But on Jan. 19, the Department of Health and Human Services (HHS) — the federal agency whose mission it is to protect the public’s health and ensure safe and effective medical care nationwide — announced plans to step up enforcement of laws that keep patients like Tamesha from having their day in court.

{mosads}The hospital that Tamesha went to was the only hospital in her county. But because it was affiliated with the Catholic Church, it refused to treat Tamesha’s dangerous miscarriage because that would have involved actively ending her pregnancy.

Doctors who work in Catholic-owned hospitals say policies like these interfere with their medical judgment and put patients at risk of serious complications. Two ACLU reports, the most recent in 2016, collected stories of women like Tamesha who suffered infection, kidney failure, loss of future fertility, and even death as a result of being denied treatment for their miscarriage.

Typically, patients like Tamesha have a right to sue for medical malpractice and seek compensation for their injuries. But many federal and state conscience laws protect doctors and hospitals from lawsuits if they deny care because of their conscientious beliefs.

These laws protect health care providers in other ways, too. They ensure that providers aren’t forced to participate in services that they oppose.

The laws also prevent providers from losing government funding, experiencing discrimination by employers or insurance companies, being disciplined by professional licensing boards, or being criminally prosecuted.

However, it’s the protections from civil liability that even supporters of strong legal conscience protections ought to question.

These laws, many of which have been in place since the Supreme Court’s 1973 decision in Roe v. Wade, reflect the widely shared belief that the government shouldn’t interfere with a person’s exercise of conscience.

But what makes health-care conscience laws controversial is that doctors, hospitals, and other health-care providers aren’t just individuals exercising their beliefs in private. Rather, the state has given them an exclusive right to provide services of great public importance.  

Their actions impact the public’s access to safe medical care, and their treatment decisions can sometimes cause patients serious harm.

According to one study, over 40 million Americans may find themselves being cared for by doctors who think they have no duty to tell patients about legal and safe treatments that they consider morally objectionable.

Four of the 10 largest U.S. hospital systems are Catholic, and one in six U.S. hospital beds are in Catholic hospitals.

Physicians working in these hospitals are required to follow the U.S. Conference of Catholic Bishops’ Ethical and Religious Directives for Catholic Health Care Services, which prohibit almost all abortions, sterilizations, and birth control methods.

And perhaps surprisingly, surveys show that patients and even sometimes physicians,  aren’t aware that they won’t have access to these medical services.

The recent announcement by HHS may not significantly change the substance of the conscience laws. However, it’s a strong signal that the government wants to prioritize a health-care provider’s conscience rights over patient’s rights to access safe medical care at their local hospitals.

The government already has plenty of power to do this on its own. It has the power to provide and withhold funding, to issue and deny medical licenses, to choose whether or not to seek criminal prosecution, and to enforce civil rights laws that protect people from religious discrimination. But using its powers to restrict the rights of patients to seek compensation for medical malpractice goes too far.

When a patient has been injured by a health-care provider who violated medical standards — even for the most sincere of reasons — the government shouldn’t bar the patient from accessing a court system that was designed to remedy exactly these kinds of harms.

Nadia N. Sawicki is a professor of health law and bioethics at Loyola University Chicago School of Law and a public voices fellow with The OpEd Project.