In May, the Trump administration issued a new rule that gives health care workers the power to refuse to provide services their religion disapproves of, such as abortion, sterilization or assisted suicide. A religious conviction isn’t even essential to trigger the rule; a matter of conscience is enough. The measure essentially revived a Bush rule that the Obama administration reversed.
It’s a bad rule, and an unethical rule, as Ethics Alarms has held before. If you can’t perform all the duties of a job, then don’t take the job. If an employee can get his or her employer to agree that he or she is exempt from certain duties, that’s freedom of contract. Fine. The Trump rule, however, like the Bush rule before it, breaches a basic principle of the workplace, and common sense as well. It also leads inevitably to messes like this one:
The federal government has accused the University of Vermont Medical Center in Burlington, Vermont of violating federal law by forcing a nurse to participate in an abortion despite her objections. The hospital denies it.
The nurse, who is Catholic, filed a complaint with the Office for Civil Rights. It alleges, that she was misled by supervisors to believe she was assisting in a procedure scheduled after a miscarriage. “After [she] confirmed that she was, in fact, being assigned to an abortion, [her employer] refused her request that other equally qualified and available personnel take her place,” the complaint reads. She then participated in the procedure and “has been haunted by nightmares ever since.”
Now the Office for Civil Rights at the Department of Health and Human Services has filed a notice of violation against the hospital, the first since the Division of Conscience and Religious Freedom was added to HHS in 2018.
“This should never happen in America,” OCR head Roger Severino told reporters. “There is room for disagreement on these issues without having to coerce people to choose between a career dedicated to supporting life versus instances and situations where they were being forced to take life.”
Everyone has to choose between careers that require them to do things they would rather not but that have other attractions, and careers that are more comfortable but less rewarding, financially or otherwise. A lawyer seeking employment at a big law firm can announce at her interview that she won’t represent international corporations, defendants in environmental cases and accused white collar criminals as a matter of conscience, and good luck with that. If she doesn’t reeval her intentions, takes the job and then demands a pass in cases that wound her sensibilities, she should be sacked, and will be.
There’s no difference here, except that the Trump administration has created this rule as one more hurdle to the right to an abortion. It’s a neon-bright Kantian violation: if every health worker opted out of abortions, then abortions would be impossible. That systemic ethical breach obviously doesn’t trouble those who oppose the right to the procedure.
The notice of violation gives the medical center 30 days to agree to work with the agency “to change its policies so it no longer requires health care personnel to participate in abortion against their religious or moral objections, and to take immediate steps to remedy the effect of its past discriminatory conduct.” If not, its federal funding is at risk. The hospital is taking the position that the allegation isn’t supported by the facts. I’d rather see it challenge the rule outright.
The hospital maintains that it hews to a policy that no health care worker will be forced to participate in a procedure that’s against his or her beliefs except in cases of life or death. “I don’t know of any cases where we’ve compelled someone to do something against their will,” the hospital’s administrator claims. If true, it should. “Do your job” is always a legitimate demand from any employer, or ought to be. Conscience rules confuse this basic principle of the workplace. As long as there is a sufficient supply of potential health care workers who will do all of their job duties, no hospital should have to hire one that won’t.
UPDATE: Commenter “Here’s Johnny” points to Federal Health Care Conscience Protection Statutes: 42 U.S.C. § 300a-7, the handiwork of Republican Senator Frank Church in the Seventies. “No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.
Office of Civil Rights, U.S. Department of Health & Human Services.” The law does not, however, require a health service program to hire a worker who cannot or perform all of their duties.