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MMS Comments in Opposition to HHS’s Proposed Rule on Conscience Rights in Health Care

March 23, 2018

The Honorable Alex Azar
Secretary
U.S. Department of Health and Human Services
Hubert H. Humphrey Building
200 Independence Avenue SW
Washington, D.C., 20201

Re: 45 CFR Part 88; HHS–OCR–2018–0002; RIN 0945–ZA03

Dear Secretary Azar:

I am submitting the following comments on behalf of the 25,000 physicians, residents and medical students of the Massachusetts Medical Society (MMS) in response to the notice of proposed rulemaking “Protecting Statutory Conscience Rights in Health care, Delegations of Authority.” 45 CFR, Part 88, HHS-OCR-2018-0002; RIN 0945-ZA03. As the following comments detail, the MMS is strongly opposed to these proposed rules, which would undermine the basic tenets of a physician’s oath to provide care to all patients.

The proposed rule would expand the ability of individuals and entities in health care settings to elect not to participate in activities that they deem contrary to their religious and/or moral beliefs. It would also make the Office of Civil Rights (OCR) responsible for the oversight and enforcement of complaints made on those grounds.

The MMS recognizes the importance and value of allowing physicians and other clinicians not to participate in interventions that they personally feel to be immoral; however, existing “conscience clauses” encoded in state law, federal statutes, institutional policies, and professional societies’ policies—including the policies of the MMS—already provide such protections.[i][ii]

If passed, this proposed rule would therefore create a problem where none exists, and would exacerbate an existing one. In explaining the grounds for this proposed rule, the OCR has cited a recent increase in complaints from clinicians who claim to have been compelled to participate in interventions to which they were morally opposed. However, the number of such claims—36 complaints in a three-month period—is so modest as to suggest that existing mechanisms to protect physicians are operating as well as could reasonably be expected. [iii]

The proposed rule would expand the already sufficient provisions far beyond the scope needed to protect the religious freedom of clinicians, and in so doing, would further jeopardize vulnerable patients’ access to health care. Discrimination towards patients is a significant issue under the current system: in 2017, the OCR received over 30,000 complaints on behalf of patients on the basis of discrimination and/or privacy violations. [iv] If the proposed rules are adopted, even more patients will face discrimination in healthcare.

The MMS has long held anti-discriminatory policies affirming the rights of all patients to evidence-based health care. Specifically, our policy states that the MMS “strongly supports the rights of individuals to health, happiness, and liberty regardless of sexual orientation, gender identity, or nationality, and urges all governments to recognize these rights.” Physicians have a fundamental duty to care for all patients.

If this rule were enacted as written, it would erode the essential right to care for already disadvantaged patient populations, including but not limited to patients on the LGBTQ spectrum—particularly transgender patients—and patients seeking abortion services. The rule could also have negative public health consequences on a population level. We are concerned that a misreading of this policy could lead to consequences such as clinicians being punished for refusing to treat patients who are not vaccinated due to religious beliefs; decreases in school immunization rates; undermining of public health efforts to protect children against vaccine preventable diseases; and interference with hospital programs which require healthcare workers to be immunized against influenza.

Furthermore, the proposed rule contravenes the intent upon which protections to religious freedom are based. The fundamental right underlying religious tolerance is the right to freedom from discrimination on the basis of religion. Encouraging discrimination against vulnerable patient populations by warping religious freedom protections for clinicians is an affront to the principles on which religious freedom is fundamentally based.

As physicians, we have an obligation to ensure patients are treated with dignity while accessing and receiving the best possible care to meet their clinical needs. We will not and cannot, in good conscience, compromise our responsibility to heal the sick based upon a patient’s racial identification, national or ethnic origin, sexual orientation, gender identity, religious affiliation, disability, immigration status, or economic status. In view of this, the Massachusetts Medical Society opposes this current rulemaking. We look forward to working with you on other issues to help improve the health and welfare of our patients and physicians who serve them.

Sincerely,