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Last week the Department of Health and Human Services acted to reinforce the conscience rights of healthcare providers.  In short, it is acting to protect those with moral/ethical/religious objections to participating in certain medical procedures or activities.  It is focused on abortion, sterilization and assisted suicide, but would also appear to cover gender reassignment surgery.

What does this mean?  If you work for a organization funded in part or in whole through HHS (Medicare or Medicaid in particular) then you cannot be forced to perform a procedure that violates your personal conscience.  Now, I’ve included the HHS announcement (and link) below.

To me this seems like a ‘no-brainer.’  However, to some it is seen as a license to deny care.  Such was, apparently, the concern of my own organization; the American College of  Emergency Physicians, which released an impassioned response (see second link below) which pointed out that it would be a violation of our ethics and of federal law for us to deny anyone care based on, well, anything.

Which is, I admit, appropriate.  If you have practiced emergency medicine for any significant time (as I have) you’ve cared for gay, straight, bi, lesbian, trans, dozens of nationalities, every race, addicts, prostitutes, dealers, murderers, rich, poor and in all likelihood, somebody has dragged a wounded dog to the door begging for help.

We operate under what’s called EMTALA; the Emergency Medical Treatment and Active Labor Act, which (since 1986) has opened the doors of basically all emergency departments to everyone, anytime, regardless of ability to pay.  Compassionate and well intended, it has (as one might suspect) endured its abuses and has been subject over and again to the ‘law of unintended consequences.’  Still, we’re proud of what we do and we do it for everyone.

However, I submit that there is no inconsistencey between what we do, and what HHS is trying to accomplish.  I don’t know of anyone in emergency medicine who would deny life-saving care to any patient.  It wouldn’t matter who they were, or how they got there, the color of the skin or the content of their character.

But in this conscience ruling,  HHS isn’t trying to offer us a reason to let bisexuals die agonizing deaths because we believe in Biblical morality.  What it is saying is, there are certain activities within medicine that we cannot be forced to participate in because we find them unethical. Thus, an OB can’t be forced to do an elective abortion (and yes, we know that ectopic treatment is a kind of abortion, but that’s understood…as a kind of self-defense, one might say).  Further, nobody can be compelled to sterilize a person.  A surgeon can’t be made to change someone’s genitals for the sake of gender reassignment (a questionable term in itself).  And the big daddy of all (thank you Europe), we can’t be made to participate in suicide.

While many non-theists assume that Christians (or other ‘people of the book’) are simply cruel, reprehensible monsters who go about looking for transgender people to throw onto the fire, it turns out we really aren’t that way. And I would argue that much of the ethical makeup of modern medicine rests solidly on Judeo-Christian morality.  The idea that we should provide compassionate (and often free) care to those with whom we profoundly disagree, to those who are our cultural adversaries, or those who are violent, costly and dangerous, well that’s really not a very ancient idea.  Not in terms of humanity’s age.  It is, however, strongly anchored in Jewish law and Christian teaching.

These things we’re discussing aren’t emergencies.  The ambulance doesn’t roll up with the paramedics screaming, ‘it’s a gender emergency!  Her uterus has to come out!’  And currently, people who come to the ER desiring to kill themselves are considered mentally unbalanced and evaluated; they are not shown a menu of various options for their demise and then helped along to eternity.

Ethics is a thing that constantly keeps us searching as society and technology, politics and culture evolve.  But it is not unethical for those with objections to be allowed to honor their own beliefs, to follow their own personal religious traditions.

What is gross, unethical, horrific is the idea that someone should be forced against his or her will to do a thing to a patient which violates the physician’s conscience.  Imagine the psychological and spiritual trauma!  If you can’t, then imagine a law which would require a lesbian to marry a man; or (despite the cake madness of the past few years), imagine a devout Muslim butcher being forced to cut bacon.

At what point did society decide that an objection based on personal morality, or on personal religion, was somehow antiquated; that it needed to be crushed for the good of progress?  These beliefs are often very deep, very personal and often extremely ancient and to dismiss them summarily is to do great harm and show enormous disrespect.

I applaued ACEP for making the point that we see and are for everyone.  I do, I will, we will.  (Trust me, after this flu season, we have seen everyone…)

But as physicians let’s remember that the individual’s right to behave in a manner consistent with his or her own deeply held beliefs is probably more foundational than any other right we have; and certainly, more so than some of the rights we continue to manufacture.

Anyone, anytime, anywhere indeed.

But not anything.

We all have standards.  Let’s respect them.


HHS Takes Major Actions to Protect Conscience Rights and Life

On Friday, January 19, 2018, the Department of Health and Human Services (HHS) announced two major actions to protect life and the conscience rights of Americans.

HHS’ Centers for Medicare & Medicaid Services (CMS) is issuing new guidance to state Medicaid directors restoring state flexibility to decide program standards. The letter issued today rescinds 2016 guidance that specifically restricted states’ ability to take certain actions against family-planning providers that offer abortion services.

Additionally, HHS’ Office for Civil Rights (OCR) is announcing a new proposed rule to enforce 25 existing statutory conscience protections for Americans involved in HHS-funded programs, which protect people from being coerced into participating in activities that violate their consciences, such as abortion, sterilization, or assisted suicide.

“Today’s actions represent promises kept by President Trump and a rollback of policies that had prevented many Americans from practicing their profession and following their conscience at the same time,” said Acting HHS Secretary Eric D. Hargan. “Americans of faith should feel at home in our health system, not discriminated against, and states should have the right to take reasonable steps in overseeing their Medicaid programs and being good stewards of public funds.”

“America’s doctors and nurses are dedicated to saving lives and should not be bullied out of the practice of medicine simply because they object to performing abortions against their conscience,” said OCR Director Roger Severino. “Conscience protection is a civil right guaranteed by laws that too often haven’t been enforced.  Today’s proposed rule will provide our new Conscience and Religious Freedom Division with enforcement tools that will make sure our conscience laws are not empty words on paper, but guarantees of justice to victims of unlawful discrimination.”


New Draft Conscience Regulation

  • The proposed rule provides practical protections for Americans’ conscience rights and is modelled on existing regulations for other civil rights laws.
  • The laws undergirding the proposed regulation include the Coats-Snowe, Weldon, and Church Amendments, as well as parts of Medicare, Medicaid, the Affordable Care Act, and others (25 statutes in total).
  • The proposed rule applies to entities that receive funds through programs funded or administered in whole or in part through HHS.
  • The proposed rule requires, for instance, that entities applying for federal grants certify that they are complying with the above-mentioned conscience-protection statutes.
  • Since President Trump took office, OCR has stepped up enforcement of these conscience statutes, many of which saw little to no enforcement activity under the previous administration.
  • The proposed rule includes a public comment period of 60 days.
  • Friday’s proposed rule follows the announcement on Thursday of a new Conscience and Religious Freedom Division in OCR, charged with implementing the proposed regulation as finalized and enforcing statutes that protect individuals and organizations from being compelled to participate in procedures such as abortion, sterilization, and assisted suicide when it would violate their religious beliefs or moral convictions.  (My emphasis)

New Medicaid Guidance Restoring State Flexibility

  • On Friday, January 19, 2018, CMS issued a State Medicaid Director Letter restoring state flexibility to establish reasonable standards for their Medicaid programs.
  • The letter rescinded an April 2016 guidance (State Medicaid Directors Letter #16-005), which limited states’ long-standing authority to regulate providers operating within their states.
  • The 2016 letter had said that states that attempted to protect the integrity of their program standards by disqualifying abortion providers from their Medicaid programs would come under CMS scrutiny, and would be required to present to CMS evidence of criminal action or unfitness to perform healthcare services.
  • As stated in the Friday letter to state Medicaid directors, CMS is concerned that the 2016 letter may have gone beyond merely interpreting what the statute and current regulations require.
  • This decision returns CMS policy to what it was prior to the issuance of the 2016 letter.
  • States will still be required to comply with all applicable statutory and regulatory requirements, including the requirement that provider qualification standards be reasonable.

The new State Medicaid Directors Letter is here: https://www.medicaid.gov/federal-policy-guidance/downloads/smd18003.pdf

The conscience regulation can be found in the Federal Register here: https://www.federalregister.gov/public-inspection/2018/01/19



mergency Physicians’ Statement on New HHS Conscience Rule
Jan 22, 2018

WASHINGTON — In response to a proposed rule by the Department of Health and Human Services (HHS) that seeks to expand protections for health care providers with objections to certain activities based on religious or moral convictions, Paul Kivela, MD, MBA, FACEP, president of the American College of Emergency Physicians, and Zach Jarou, MD, president of the Emergency Medicine Residents’ Association (EMRA), released the following joint statement:

“Anyone.  Anything. Anytime.  Both by law and by oath, emergency physicians care for ALL patients seeking emergency medical treatment. Denial of emergency care or delays in providing emergency services based on race, religion, sexual orientation, gender identity, ethnic background, social status, type of illness, or ability to pay, are unethical [according to our Code of Ethics].”  (Emphasis mine)

ACEP is the national medical specialty society representing emergency medicine. ACEP is committed to advancing emergency care through continuing education, research and public education. Headquartered in Dallas, Texas, ACEP has 53 chapters representing each state, as well as Puerto Rico and the District of Columbia. A Government Services Chapter represents emergency physicians employed by military branches and other government agencies.

EMRA is the voice of emergency medicine physicians-in-training and the future of our specialty. EMRA is the largest and oldest independent resident organization in the world. EMRA was founded in 1974 and today has a membership over 16,000 residents, medical students, and alumni.

For further information: Mike Baldyga | 202-370-9288 | mbaldyga@acep.org | Twitter @EmergencyDocs @emresidents
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