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February 07, 2011

Questions on the Bush conscience regs

Apparently the Obama Administration is due to issue its new regulations on conscience rights for health care providers sometime between now and March 1.  (See this court filing.)  I'm trying to get up to speed on the Bush regs, and I have a couple of questions:

1) Are folks who oppose the Bush regs arguing that they represent a change in the law, and if so, what is their argument?  I can understand opposition based on opposition to the underlying laws (Church Amendments, Public Health Service Act, Weldon Amendment) or on wanting to keep the existing laws underenforced and underpublicized, but I can't figure out any way to view these regulations as changing the existing law.  Any thoughts?

2) Section 88.4(d)(2) of the regulations provides that a covered entity shall not: "discriminate in the employment, promotion, termination, or the extension of staff or other privileges to any physician or other health care personnel because he performed, assisted in the performance, refused to perform, or refused to assist in the performance of any lawful health service or research activity on the grounds that his performance or assistance in performance of such service or activity would be contrary to his religious beliefs or moral convictions, or because of the religious beliefs or moral convictions concerning such activity themselves."

Given the language in bold, does this mean that a Catholic health care organization could not refuse to hire or grant privileges to a physician who is a notorious provider of late-term abortions, for example?  If the person provides the services based on his moral convictions, wouldn't that person fall within this regulation's protection?  (Obviously the organization could prevent the person from performing the services at that organization, but the physician could maintain their own private practice.)  Or would a research entity dedicated to pro-life values be precluded from refusing to hire someone who has been a leader in embryonic stem cell research?

If I'm correct in my interpretation of the provision (and I very well may be wrong), this does reflect an accurate view of conscience (i.e., sometimes conscience forbids, but sometimes conscience permits).  A policy based on that reality, though, creates problems when it focuses almost exclusively on conscience protection at the level of the individual provider.  Institutional identity gets pushed to the margins.  Am I missing something?

Posted by Rob Vischer on February 7, 2011 at 11:11 AM in Vischer, Rob | Permalink

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It's been a while since I've read it (and I don't remember the argument being very good), but for an answer to (1) I would look at the suit filed against the Bush regs by Attorney General (now Senator) Blumenthal on behalf of Connecticut back in 2008. I *think* one of the objections was that the regs are overly broad in such a way that they interfered with the State's onerous contraceptive mandates, but I could be misremembering.

As for (2), I'm pretty sure that's the established reading of the Church Amendments, so it makes sense for part 88 to say the same. I've also heard (anecdotally, albeit from physicians) that if a Catholic hospital revoked the privileges of an extracurricular abortionist it would probably have a revolt on its hands from the medical staff as a question of professional prerogative. So in practical terms it might not actually prevent Catholic hospitals from doing anything they would be doing otherwise. That aside, yours is a good point there there seems to be some tension here between individual and institutional "conscience."

Posted by: Mike | Feb 7, 2011 12:48:05 PM

Here's a summary of what Blumenthal had to say: http://www.ct.gov/ag/cwp/view.asp?Q=431972&A=3673

Posted by: Mike | Feb 7, 2011 12:58:43 PM

Thanks Mike -- here is Blumenthal's press release: http://www.ct.gov/ag/cwp/view.asp?A=3673&Q=431972 It seems to me that all the claims he brought against the regs would also apply to 42 USC 300a-7(d), which provides that "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 [HHS] 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."

Posted by: rob vischer | Feb 7, 2011 1:01:32 PM

I think you're right, Prof. Vischer (excluding his APA claim, of course).

One thing that made the Bush regs different from, say, 42 USC 300a-7(d) at the time, though, was the draft copy of the regs that was leaked to the NY Times which (basically) said a healthcare provider could refuse to participate in contraception if she believed it was abortifacient. Now, obviously Secretary Leavitt didn't include that language in the final rule and those contraception questions really aren't any clearer in part 88 than they are in Church, Coats, or Hyde-Weldon, but the fact that they *were* in the background of the Bush regs *might* help explain why there was/is so much outrage directed at them but not, it seems, at the legislative enactments.

Posted by: Mike | Feb 7, 2011 1:19:27 PM

Rob you are correct on point one. There is no argument against what the Bush implementing regulations do, that is not also an argument against the underlying statutes themselves. Opposition to the regulations is unavoidably opposition to the statutes. (The APA claim is purely a toss-in and would be proven meritless anyway if litigated). Anti-conscience advocates have attacked the implementing regulations explicitly as an expansion of conscience rights, but they say that only as a press release talking point (which their federal complaints were written to resemble). There's no content to the argument that the implementing regulations go beyond the statutes, because there is no substantive requirement in the regulations that is not contained verbatim in the statutes. For example, the regulations require a recipient of funds to certify, by the exact language of the statute that applies to them, that they do indeed comply with that language. No opponent of the regulations has ever pointed to a substantive requirement of the regulations that is not also presently a requirement of United States statute, and they cannot do so.

On your question two, the Church Amendment (so far as it goes) does indeed cut both ways in some respects. This is how it was drafted in 1973, the USCCB signed off on it at the time, and even CHA supports is (as indicated by their HHS comments in response to the implementing regulation and more generally their support for the idea that Obamacare somehow reaffirms it). Part (b) of Church, notably, does guarantee that Catholic institutions can refuse to allow abortions etc. to take place on premises. So the remaining questions are twofold: what do Catholic hospitals getting the requisite funding do with privileges to people who do abortions but only do them elsewhere, and would a Catholic institution have any other defense if someone who does abortions elsewhere claimed that the Catholic hospital violated the provision. This issue might continue to lay dormant for a couple of reasons. First, in the Second Circuit at least, such a doctor couldn't file a lawsuit under Church even if a Catholic hospital did discriminate based on his doing abortions elsewhere. And second, as a practical matter, Catholic hospitals seem fine with this and they would have to be the ones to mount a response.

Posted by: Matt Bowman | Feb 7, 2011 1:52:03 PM

This is cannibalized from some messages I wrote shortly after the regulations were proposed I think everything is still accurate (assuming, of course, that it was accurate when I wrote it, and of course many people disagreed with me):

Opponents say that although the regulation is claimed to be a clarification of existing laws, it vastly expands the scope far beyond what congress intended when it created those laws. It overlaps with existing and reinterprets civil rights laws in this area that have been fine-tuned for decades, which is why the EEOC complained. And it conflicts with some existing state laws that define what pharmacists and other healthcare workers may and may not do. It also requires certification, which creates new paperwork, adding new administrative costs for every entity covered by the regulation,

A September 23, 2008, letter from the American Hospital Association said:

***************
The preamble also defines, very broadly, the types of individuals that may be involved in an objectionable procedure. The preamble provides an example of a health care worker who autoclaves (sterilizes) surgical instruments used in an objectionable procedure as someone that “assists in the performance” and is thereby protected under the provider conscience clause. The preamble language further defines that any activity with a reasonable connection to the objectionable procedure, such as referrals and training, can also be considered objectionable. This broad definition of “assist in the performance” suggests that any individual invoking the conscience clause protections is under no obligation to refer the patient to other practitioners, pharmacists or hospitals from whom the patient could receive care. The AHA objects to any proposal that releases a practitioner, for any reason, from an obligation to provide or assist patients with a referral or other information that would allow the patient to receive needed health care services.
****************
http://www.aha.org/aha/letter/2008/080923-cl-conscience-clause.pdf

The New York Times reported :

**********
But three officials from the Equal Employment Opportunity Commission, including its legal counsel, whom President Bush appointed, said the proposal would overturn 40 years of civil rights law prohibiting job discrimination based on religion.

The counsel, Reed L. Russell, and two Democratic members of the commission, Stuart J. Ishimaru and Christine M. Griffin, also said that the rule was unnecessary for the protection of employees and potentially confusing to employers.
**********
http://www.nytimes.com/2008/11/18/washington/18abort.html?_r=1&hp

You ask: "Or would a research entity dedicated to pro-life values be precluded from refusing to hire someone who has been a leader in embryonic stem cell research?"

Or, vice-versa, would it be discrimination to refuse to hire a pro-life scientist at a facility that does embryonic stem-cell research and wind up with someone who refuses to do the job he was hired to do?

Here is an interesting case where the Catholic Church's concept of unjust discrimination" comes into play. Do the regulations prohibit *any* discrimination, or merely *unjust* discrimination? If you are not allowed to "discriminate" against someone who refuses, say, to perform abortions, can that person apply for a position at an abortion clinic, claim discrimination if they are not hired, and if they are hired, refuse to "assist in the performance of" abortions? I recall someone saying this law would give a doctor's receptionist the right to refuse to make appointments for patients being referred to an abortion clinic. Could it also not require an abortion clinic to hire a receptionist who won't book appointments for abortions?

Posted by: David Nickol | Feb 7, 2011 2:17:31 PM

Block-quoting citations that "opponents claim" the regulations exceed the substantive requirements of the statutes is, to most readers, different than actually citing a line from the regulations themselves that exceed the statutes. Neither David nor any opponent of the conscience rights regulations has ever quoted a substantive requirement of the regulations that is not also presently a requirement of United States statute, and they cannot do so.

As for the idea that the statute shouldn't include people who refer for abortions, the statutes mention referral specifically in several places. As for the idea that "assisting in the peformance" of abortions shouldn't include people who prepare the abortion instruments, the statute nowhere says that SOME ASSISTERS AREN'T PROTECTED. Abortionists, of course, don't want to protect assisters, and want to narrow the definition of who is an assister as tightly as possible. But this is a civil rights statute, it is written broadly on purpose. It's absurd to let abortionists and their apologists get to decide that a statute intended to protect people from their coercion doesn't apply to a swath of people they want to coerce, when the statute on the face of it applies without such limitations.

Posted by: Matt Bowman | Feb 7, 2011 2:44:26 PM

Or to put it another way, where the statute says "assist," and the regulations say assist includes all assisters for example x, that is not exceeding the statute. That is implementing the statute. No one has or can quote a line from the regulations that exceed the substantive requirements of the statute. More block quotes from newspaper articles and comments submitted to HHS are not quotes from the regulation.

Posted by: Matt Bowman | Feb 7, 2011 2:52:30 PM

Let's make this even simpler. Here are links to the text of the regulations and of the three statutes. All we need is a QUOTE from the first that is a substantive expansion of a QUOTE from the latter three.

Implementing Regulation
http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=94aad31f4793d0675d64c4565916f602&rgn=div5&view=text&node=45:1.0.1.1.46&idno=45

Church Amendment
http://www.law.cornell.edu/uscode/42/usc_sec_42_00000300---a007-.html

Coats-Snowe Amendment
http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00000238---n000-.html

Hyde-Weldon Amendment
http://www.nccbuscc.org/prolife/issues/abortion/h-backgrounder.pdf

Posted by: Matt Bowman | Feb 7, 2011 3:05:46 PM

As to (2), I think you clearly have the correct reading of the rule. And it's clearly also the right view of conscience. If Catholics want conscience protections, they need to be willing to extend those same protections to people who disagree with them. "Conscience" doesn't mean that "things in accordance with *my* conscience should be protected."

Posted by: Andrew MacKie-Mason | Feb 7, 2011 3:26:30 PM

Bush Regulations:
"Assist in the Performance" means to participate in any activity with a reasonable connection to a procedure, health service or health service program, or research activity, so long as the individual involved is a part of the workforce of a Department-funded entity. This includes counseling, referral, training, and other arrangements for the procedure, health service, or research activity.

Church Amendment
(1) such individual to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions. . . . .

It seems to me that, as many opponents have pointed out, "assist in the performance" is defined very broadly in the Bush regulations. The Guttmacher Institute makes a case here
http://www.guttmacher.org/media/resources/2008/09/24/GuttmacherInstitute-re-ConscienceRegulation.pdf

The Guttmacher institute notes that the Bush regulations in 88.4 (d) (1) read as follows:

*************
(d) Entities to whom this paragraph (d) applies shall not:

(1) Require any individual to perform or assist in the performance of any part of a health service program or research activity funded by the Department if such service or activity would be contrary to his religious beliefs or moral convictions.
************

They point out that this is not limited to abortion or sterilization, but could apply to anything at all a person claims to have a moral objection to. That definitely broader than Church, Coats-Snowe, and Hyde-Weldon.

In Catholic terms, it seems to me that the existing laws protect those who do not want to engage in direct or proximate material cooperation with abortion, while the Bush regulations extend that to remote material cooperation.

Posted by: David Nickol | Feb 7, 2011 3:37:57 PM

David raises two quotes from the regulations that he argues exceed the underlying statutes, both of which do not exceed the statute.

Actually David only raises one conflict, since his second one is not a quote from the statute, it's yet another quote from an anti-conscience opponent of the regulations. For that reason, David once again fails to show any expansion of the statutes. On the merits of his allegation, however, the Church Amendment STATUTE parts c2 AND d require recipients of certain funds to not to discriminate against someone who refuses to participate in something because it conflicts with his "religious beliefs or moral convictions"--not just abortion or sterilization. So here we have the regulation, applying the text of the statute verbatim, and David an Guttmacher call it an expansion of the statute. This is why I asked for quotes from the statute, not from anti-conscience advocates. They know they are opposing the underlying statutes. But they talk as if the regulation exceeds those statutes. And they convince people that they are speaking accurately; folks like David, who block quote their allegations far and wide (which is what they intended when they wrote those allegations).

As for David's actual quote from the statute and regulation, he illustrates that the regulation does not expand the statute. The statute says you can't force someone to "assist." The statute doesn't define assist. So that means, "assist" means anyone who Congress reasonably meant when they said "assist," and they said it in a statute that is intended to protect civil rights of victims of coercion, and they said it in the context of legislative history that expressed the need to guarantee and assure people in the medical profession that they wouldn't have to assist. The regulation, therefore, says that anyone reasonably deemed as assisting is assisting. That's not giving a right that doesn't exist in the statute. That's applying the statute to situations to which it does apply. The statute says you can't be forced to assist--the regulations says it applies to anyone reasonably deemed to assist. Preparing the abortion instruments is assisting in the performance. Referral is assisting in the performance. These things are assistance, reasonably considered in implementing a civil rights statute on behalf of victims. They do not exceed any word in the statute. All they do is take a word, "assit," which reasonably includes an entire spectrum between remote and proximate, and say we are going to include the bulk of the spectrum. That is not an expansion. The real question is: why should an abortionist and his defenders get to impose their most narrow definition possible on the spectrum of a word that the statute used to protect people from his own coercion? Would we let a racist define who Title VII applies to and in what circumstances?

So is that all? Just two examples of alleged expansions that David brought up; and both are supported by the statutes. Any others? Seems like a pretty weak case to call these regulations an expansion. As I argued above, the regulations do nothing but implement the text of the statutes.

Posted by: Matt Bowman | Feb 7, 2011 4:27:13 PM

Yeah, no dice with 88.4(d). The application of 88.4(d) is limited in 88.3(g)(2) to specific grantees ("any such entity that receives grants or contracts for biomedical or behavioral research under any program administered by the Secretary of Health and Human Services"), consistent with 42 USC 300a-7(c)(2) ("No entity which receives after July 12, 1974, a grant or contract for biomedical or behavioral research under any program administered by the Secretary of Health and Human Services"). And as Matt points out, the protections in 88.4(d) and (c)(2) of Coats are basically the same ("if such service or activity would be contrary to his religious beliefs or moral convictions[]" and "on the grounds that his performance or assistance in the performance of such service or activity would be contrary to his religious beliefs or moral convictions. . . .").

Posted by: Mike | Feb 7, 2011 4:46:08 PM

*(c)(2) of CHURCH, not Coats.

Posted by: Mike | Feb 7, 2011 4:47:07 PM

"They point out that this is not limited to abortion or sterilization, but could apply to anything at all a person claims to have a moral objection to. That definitely broader than Church, Coats-Snowe, and Hyde-Weldon."

David, how could you possibly say this, when the text of Church c2 and d explicitly apply in this way?

Posted by: Matt Bowman | Feb 7, 2011 4:48:33 PM

Matt Bowman asks: "David, how could you possibly say this, when the text of Church c2 and d explicitly apply in this way?"

Church c(2) applies only to entities doing biomedical or behavioral research with funds from HHS. And despite the broadness of the language in Church Amendment, the whole amendment, including (d), has been taken to apply only to abortion and sterilization, since it was clearly passed in reaction to Roe v Wade. See, e.g., 119 CONG. REC. 9595 (1973) (statement of Sen. Church) (“The amendment would simply clarify the intent of Congress with respect to the significance of accepting Federal funding as it might apply to the question of performing abortions or sterilizations in religious[ly] affiliated hospitals . . . .”).
http://www.houstonlawreview.org/archive/downloads/46-3_pdf/08_Walker.pdf

The obvious question is why the Bush regulations are so important if all they do is restate existing law. The answer is that they do not simply restate existing law, they broaden it considerably.


Posted by: David Nickol | Feb 7, 2011 6:54:56 PM

Mike,

**********
88.4(d) Entities to whom this paragraph (d) applies shall not:

(1) Require any individual to perform or assist in the performance of any part of a health service program or research activity funded by the Department if such service or activity would be contrary to his religious beliefs or moral convictions.
**********

**********
88.3(g)(1) Any entity, including a State or local government, that carries out any part of any health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services must comply with §§88.4(d)(1) and 88.5 of this part.
**********

Consequently, 88.4(d)(1) applies to much more than "any such entity that receives grants or contracts for biomedical or behavioral research under any program administered by the Secretary of Health and Human Services." It applies also to "any health service program . . . funded in whole or in part under a program administered by the Secretary of Health and Human Services."

As I said above, the Church Amendment has been interpreted to apply only to abortion and sterilization, not anything at all that a person has a religious or moral objection to.

Posted by: David Nickol | Feb 7, 2011 7:15:20 PM

88.3(g)(1) is a regulation based on 42 USC 300a-7(d) (as I believe Matt pointed out above), which states "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." I should have pointed it out as well, as it reinforces my point that you're misreading the regulations as they relate to the legislative language.

So, no, the Church Amendment does not apply only to abortion and sterilization insofar as subsections (c) and (d) are concerned, which (as the regulations indicate) are what 88.4(d) refers to through sections 88.3(g)(1) and 88.3(g)(2). "Read the statute; read the statute; read the statute" as they say in law school.

Posted by: Mike | Feb 7, 2011 8:11:55 PM

So David believes that 42 USC 300a-7(c) and (d) only apply to abortion and sterilization. Despite the fact that they say they apply to any religious objection within their funding context.

And David is the one accusing the Bush regulations of violating the statute.

Davod contends this despite explicit reference to the statute.

This is either illiteracy or bad faith argument on David's part. Even when the statute's words are plain and pointed out to him, David refuses to admit his own error and correct the record of his accusing me and Mike of falsifying the law. Pro-abortion Guttmacher is his story, and he is sticking to it.

I would like to know if anyone has a serious point to make about these regulations. David will no doubt try to hijack this thread by regurgitating his block quotes several more times. But I think Rob's questions are worth discussing seriously and in good faith.

Posted by: Matt Bowman | Feb 7, 2011 8:17:40 PM

...to be precise, 42 USC 300a-7(c)(2) and (d).

By the way, David's bad faith and obstinancy extends to his quotation of Senator Church from 119 CONG. REC. 9595 (1973). If David cared about facts he would realize that Church (b) and (c)(1) were enacted in 1973, while Church (c)(2) was enacted THE NEXT YEAR in 1974, as part of another health funding bill. If he cared about facts he would also know that Senator Church's comments in March of 1973 occurred on the Senate version which only had part (b) in it; what would become part (c)(1) was not added until the house version in September. So yes, parts (b) and (c)(1) of Church only apply to abortion and sterilization and Senator Church said so, because that's all those parts say. Part (c)(2) didn't exist until the next year. But some people don't care about facts or diligence, they just want to attack anything pro-life and prevent Catholics from having orderly discussion about it in a blog comment box.

Posted by: Matt Bowman | Feb 7, 2011 8:24:28 PM

Matt is right: I should have said "insofar as subsections (c)(2) and (d) are concerned . . . ." I was imprecise.

Posted by: Mike | Feb 7, 2011 8:41:20 PM

...and as to 42 USC 300a-7(d), which applies to any religious objection by students and David claims Senator Church was talking about it in 1973: that part was enacted in September 1979, six years after the "interpretation" that David quotes. Unreal.

Posted by: Matt Bowman | Feb 7, 2011 8:43:10 PM

Here is the pertinent passage from the Church Amendment: "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."

I would be interested to hear from Matt or anyone else who cares to venture an opinion, if this covers more than abortion and sterilization, exactly what DOES it cover and what does it not cover?

For example, Jehovah's Witnesses have a religious objection to blood transfusions. May a nurse or doctor who is a Jehovah's Witness refuse to give a patient blood?

Suppose an Orthodox Jewish (male) doctor or nurse refuses to touch women who are menstruating or bleeding vaginally. Must they be accommodated?

Scientologists oppose the use of all psychiatric drugs not just for themselves, but for anyone. May doctors or nurses who are Scientologists refuse to prescribe or administer psychiatric drugs? May a doctor who is a Scientologist refuse to refer a patient to a psychiatrist or even inform the patient what a psychiatrist might do for him or her? May a Scientologist pharmacist refuse to dispense antidepressants and antipsychotics?

And of course these three examples refer to verifiable beliefs of relatively well known religions. What about an individual's "moral convictions"? Perhaps I feel that purely cosmetic surgery is immoral -- you should live with the nose God gave you. If I work in a hospital, may I refuse to sterilize instruments used for cosmetic surgery?

Posted by: David Nickol | Feb 8, 2011 12:00:08 AM

"if this covers more than abortion and sterilization"

Perhaps you are not getting the point. The language has nothing to do with an abortion and sterilization limit. It is completely 100% unfounded to claim that it only deals with abortion and sterilization. The language means what it says: "would be contrary to his religious beliefs or moral convictions." Period. Any suggestion that this is limited to abortion and sterilization, or limited to exclude anything contrary to religious beliefs or moral convictions, is pure fabrication and shows the unreliability of the source making such a claim.

David I truly think that you have presented the very best arguments here that exist against the Bush conscience regulations. No one reading your comments can have any doubt now the answer to Rob's question, whether the regulations can plausibly be claimed to add to or merely implement the statutes. I would suggest for fairness sake that other commenters who are not of the same analytic caliber as yourself be allowed to suggest whether they have any points to offer to show a conflict between the statutes and the regulations.

Posted by: Matt Bowman | Feb 8, 2011 9:13:26 AM

Matt,

You say, "I would suggest for fairness sake that other commenters who are not of the same analytic caliber as yourself be allowed to suggest whether they have any points to offer to show a conflict between the statutes and the regulations."

Thank you for your kind words. I do my best, but not being a lawyer, it is not always easy to sort out these issues. I would be delighted to see more points of view expressed in this thread, and if I thought that I were somehow crowding out others, I would certainly back off and just read instead of write. I certainly hope I am not keeping others out of the discussion, but if Rob Vischer thinks I am, I will certainly refrain from any further posts in this thread.

I would note that one of the two questions asked was: "Are folks who oppose the Bush regs arguing that they represent a change in the law, and if so, what is their argument?" I am only trying to answer that question.

Posted by: David Nickol | Feb 8, 2011 10:01:54 AM

Matt,

You say: "Perhaps you are not getting the point. The language has nothing to do with an abortion and sterilization limit. It is completely 100% unfounded to claim that it only deals with abortion and sterilization."

I understand the point. When I read the language under discussion from the Church Amendment [§ 300a–7(d)] I certainly do not see any stated limitation to abortion and sterilization. However, after a considerable time searching for information on the Church Amendment, I can find nothing to say it has ever been interpreted to cover anything beyond abortion and sterilization, but I can find information that says that it has not. For example:

**********
Additionally, the Amendment
broadly states that no individual “shall” be forced to perform any
activity that is part of a health service program or research
activity if that activity contravenes his or her religious beliefs.53
However, the only actor prohibited from discriminating on this
basis is an “entity” doing biomedical or behavioral research with
funds from HHS, and thus the prohibition does not extend to all
entities receiving federal funding.54 Despite the potentially broad
construction of this provision, the Church Amendment has been
largely understood (at least until recently) to pertain only to
sterilization and abortion.55

[I am not reproducing footnotes 53 and 54, but here is note 55]
55. See, e.g., 119 CONG. REC. 9595 (1973) (statement of Sen. Church) (“The
amendment would simply clarify the intent of Congress with respect to the significance of
accepting Federal funding as it might apply to the question of performing abortions or
sterilizations in religious[ly] affiliated hospitals . . . .”); Taylor, 523 F.2d at 77
(acknowledging the “need to protect . . . denominational hospitals with religious or moral
scruples against sterilizations and abortions” (internal quotation marks omitted));
Eisenstadt, supra note 43, at 145–47 (explaining that the initial concerns spurring the
passage of the Church Amendment pertained to abortion and sterilization); Jody Feder,
Federal and State Laws Regarding Pharmacists Who Refuse to Dispense Contraceptives, in
CRS REPORT FOR CONGRESS 1 (Cong. Research Serv., CRS Report RS22293, 2005), available
at http://www.policyarchive.org/bitstream/handle/10207/4243/RS22293_20051007.pdf (“Until
recently, most conscience clause laws were designed to allow medical practitioners to opt out
of providing abortion-related services.”).
**********

Maybe I am not looking in the right places. Could you provide some instance in which the Church Amendment has been referred to or invoked for conscience protection not relating to abortion or sterilization? Does the fact that the law appears under the heading § 300a-7. Sterilization or abortion in any way limit the very broad language under discussion?

Posted by: David Nickol | Feb 8, 2011 10:18:36 AM

David, I don't think you are understanding what a statute is in American law. A statute is what it says. If Church c2 and d say religious beliefs and moral convictions, that is THE authoritative source of what it means. You don't need some other interpretation of it to determine whether it means what it says. Now, as it happens, any literate person who looks at these paragraphs should agree that they mean what they say, and don't mean something else such as abortion and sterilization. And of course, the internet and the world being what they are, you can find anyone anywhere with a web address who will claim that a statute doesn't mean what it says. You can especially find a pro-abortion activist group such as Guttmacher claiming that a statute doesn't mean what it says when what it says adversely impacts abortion.

The "source" you block quoted just now is a pro-abortion activist law student who wrote something nasty about pro-life conscience rights as a project for law review. Her footnote is poor lawyering--the sources she cites completely fail to support her contention that c2 and d are limited to abortion/sterilization. They just don't support the claim. They assert something different. As I said, Senator Church couldn't have been commenting on c2 or d becuase they didn't exist at the time--Taylor is discussing only Church b not c2 (d didn't exist in 1975)--"Eisenstadt" is merely a law review article from yet another pro-abortion law student and it doesn't even claim that c2 and d are limited to abortion/sterilization, it again speaks only of b and c1; and the CRS memo also fails to claim that c2 and d don't mean what they say. For a law student to make this kind of mistake and to have it published--asserting something that is totally unsupported by the sources she claims support it--is a good example of how ideological bias leads to poor quality, and is a tarnish on the record of the Houston Law Review.

More importantly, it is utterly irrelevant what a pro-abortion law student thinks this statute means. Such a person's opinion (stating what she THINKS other people think, but without actual support) has zero weight for anyone who would formally interpret the Church c2 and d, such as a court. Statutes mean what they say. You don't need an "interpretation," and a law student hack doesn't add any weight to the scale.

Posted by: Matt Bowman | Feb 8, 2011 11:06:23 AM

"I can find nothing to say it has ever been interpreted to cover anything beyond abortion and sterilization, but I can find information that says that it has not . . . ."

Perhaps I'm missing something, but I don't see how this is relevant in a discussion of agency action--like any fruitful discussion of 45 CFR 88 would have to be. If the ultimate argument is "I, and other third-party interpreters, don't think the organic statute means what it *says* it means, and thus the agency erred in implementing it *verbatim*," then you've basically got a frivolous argument on your hands.

One *can* argue (1) that Church (c)(2) & (d) are too broad and ought to, as a matter of policy, be restricted by the legislature, or (2) Church (c)(2) & (d) are legally ambiguous (hard, but not impossible to show) and thus the agency *should* interpret them in a restrictive manner. If the ambiguity in (2) can be shown, Chevron dictates that the agency should be shown considerable deference in restricting (c)(2) and (d); it would be shown an equal amount of deference, however, in either (a) implementing the organic statute as written or (b) resolving the ambiguity in a way that *broadens* the protection in a manner consistent with the ambiguous authorizing language. Thus, if Church (c)(2) & (d) are not clear (as I think Mr. Nickol is implying), legally HHS is still in the clear and, in fact, could have *legally* gone considerably further in implementing the organic statute.

Posted by: Mike | Feb 8, 2011 11:20:30 AM

(The question of *whether* the agency *should* have interpreted the statute restrictively is entirely different, as the claims have been that the agency acted improperly by *expanding* the statutory protections (which it perhaps could have, but did not). An agency does not expand protections by failing to restrict them according to the normative prescriptions of third parties, which is so a fortiori when the agency simply implements an organic statute verbatim.)

Posted by: Mike | Feb 8, 2011 11:29:09 AM

correction of myself: parts c2 AND d were added in July 1974; part e was added in 1979; but all of those were added in bills and discussions disconnected with and occuring well after Senator Church's comments on the Senate floor on March 27, 1973 cited in 119 CONG. REC. 9595 (and even c1 occurrd later--it didn't exist until the House introduced it in May 31, 1973). The Senator was and only could have been speaking of part b, which is explicitly focused on abortion and sterilization. The Taylor case, in turn, explicitly and only applies to part b, and it neither has any import on the meaning of c2 and d, nor does it claim to.

Regarding the "abortion and sterilization" header visible in the United States Code, that header is not contained in the Public Laws that Congress passed enacting 300a-7 parts b through e. Other headers, such as "Individual Rights," are contained in those public laws, but not that one. It is not law. In fact courts don't give much weight to the headers that Congress DOES enact, especially if someone tries to use them to contradict the text, as this one would be used if it were to restrict "religious beliefs" to merely abortion/sterilization. But for headers that Congress did not enact, they have no interpretive weight at all.

Posted by: Matt Bowman | Feb 8, 2011 11:32:03 AM

Mike and Matt,

Here's what I think is the issue. I can find no statement about the Church Amendment that applies it to anything other than abortion or sterilization. I can read the amendment, and I agree that (d) does contain language that limits it to abortion and sterilization. However, nowhere can I find anyone invoking the Church Amendment in a legal case or in an argument to defend, say, the rights of pharmacists to refuse to dispense birth control pills. With conscience protection having been such a hot topic over the last several years, I am wondering why I can find no one invoking the Church Amendment for anything other than abortion or sterilization. Has it been invoked?

Posted by: David Nickol | Feb 8, 2011 12:02:13 PM

David, I'm not aware of it being invoked in other contexts. I think that's one of the purposes of the Bush regs: to make sure that people know what the law is and that it is enforced as written. This is why, in my view, opposition to the regs has to be accompanied by opposition to at least certain aspects of the underlying statutes. (I'm not making an argument about the merits of the underlying statutes.)

Posted by: rob vischer | Feb 8, 2011 12:06:57 PM

"I can find no statement about the Church Amendment that applies it to anything other than abortion or sterilization."

You don't need a statement about the Church Amendment. You just need the statute itself. It says what it means, and means what it says. I don't know if you are thinking that we live in a legal tradition that requires something more. We don't. One could just as easily say there is no credible statement saying that Church c2 and d DON'T mean what they say. Both observations are irrelevant to the question: the Bush implementing regulations do not conflict with the statutes--they simply apply them, and there's no good argument to the contrary.

If you want to know, not for statutory interpretation but just as a historical curiousity why these laws have had very little caselaw on them in either direction, I would say several things. It is likely that for many years entities followed them so no complaints were needed. At the same time, other entities violated them and victims didn't even know they had rights under these laws. In recent years, however, the abortion industry has placed conscience rights squarely in their crosshairs, such as by ACOG/ABOG's opinion in 2007 requiring levels of participation in abortion. The abortion industry now knows that it will wither on the vine if it doesn't force abortion into mainstream institutions. Internationally and domestically, abortion organizations have declared in the past few years that the number one obatacle to expanding baby killing is conscience rights. So we are at the front end of a new wave in this battle. There is not a lot of exemplary cases in either direction.

In America, that doesn't matter at all to what the statute means.

Posted by: Matt Bowman | Feb 8, 2011 12:30:21 PM

Also David, you need to realize that Church c2 and d are limited in the circumstances in which they apply. To use your example, many pharmacists objecting to dispensing birth control can't use c2 or d, not because c2 and d don't apply to birth control, but because the other requirements of c2 and d might not apply (who is getting the funding, what specific funding are they getting, what context of objections does the restriction apply to). In addition, some courts have said or implied that victims can't sue even if the statute does apply to them. So there are a bunch of hurdles to a legal case like that getting off the ground, that have nothing to do with restricting c2 and d to abortion and sterilization, and that don't in any way suggest that the Bush regulations exceed the scope of the statute.

Posted by: Matt Bowman | Feb 8, 2011 12:41:53 PM

Maybe one of you can save me some research time. I see where the statute and regulations say that no one "shall be forced to perform any activity," etc. But what does it say about limiting the hospital's right to later fire the person? That, it seems, is where the real answers must lie regarding the accomodation of a nurse in a general hospital, who can be given other duties, vs. the nurse who applies to work in an abortion clinic, who cannot reasonably expect a paycheck for doing no work.

Under Title VII, religious objectors are subject to a balancing test, so that employers must accomodate if they can do so without undue hardship, but can fire the person if no reasonable accomodation is possible. So large factories can juggle the schedule to allow some off on Saturdays, some on Sundays, and so on. But a fire department can't avoid calling in all hands on an emergency, etc.

Does this scheme have a similar balancing test, or incorporate the Title VII one? Otherwise something is askew in either direction: a "no compulsion" clause does no good without an anti-firing provision, but an anti-firing provision is nutty without allowance for "core function of the job," i.e., the abortion clinic.

Posted by: joe catholic | Feb 8, 2011 2:16:26 PM

These federal conscience statutes do not have a balancing test like Title VII. No discrimination means no discrimination.

Posted by: Matt Bowman | Feb 8, 2011 2:22:55 PM

If I understand Joe Catholic's question and Matt Bowman's answer, under the federal conscience statutes under discussion here, it is THEORETICALLY possible for someone to apply for a job that her or she will refuse, in whole or in part, to perform, and such a person may not be discriminated against. For example, a nurse who will refuse to assist in the performance of abortions, or a receptionist who will not schedule abortions, in theory could apply for jobs at an abortion clinic, and it would be impermissible for the abortion clinic to discriminate against them on this basis. If hired, the nurse could then refuse to assist in the performance of abortions and the receptionist could refuse to schedule any appointments for abortions, and their refusal could not be held against them in evaluating their performance.

Would the abortion clinic -- the potential employer -- even be permitted to ask in advance whether these two individuals had any objections to abortion related activities?

Also, according to what Matt says about the Church Amendment, we are not just talking about abortion and sterilization. So is it legal for a medical employer to ask in a job interview if there is anything that the interviewee would refuse to do on the job for reasons of conscience? Or is even asking prohibited?

Posted by: David Nickol | Feb 8, 2011 2:58:14 PM

Rob raised a question like this in a previous post and I responded there. The upshot for this thread is that if someone objects on this basis, their objection is to the statute, not to a supposed expansion that the regulations make. They are just implementing the text of federal law.

Posted by: Matt Bowman | Feb 8, 2011 3:17:58 PM

If the current statues actually do prohibit "discrimination" against medical workers who can claim that *anything* is against their religion and/or violates their conscience, and refuse to cooperate in any way, even remotely, to participate in the activity, then I oppose the statutes. I don't think anyone should be required to perform abortions or sterilizations or assist in doing so, but who would want to go to a doctor or check into a hospital where everyone had a perfect right to refuse to do something that other people would consider normal medical care?

Clearly, though, no matter how broadly the statutes are written, there are, in real life, limits. I really don't believe a Scientologist nurse in a hospital could refuse to administer antidepressants, or a Scientist doctor in an emergency room could decline to bring in a psychiatrist if a patient is brought in who is clearly having a manic or psychotic episode.

Posted by: David Nickol | Feb 8, 2011 3:51:21 PM

Thank you for admitting that opposition to the regulations is actually opposition to the statutes. That's what I have been trying to say this whole time.

Posted by: Matt Bowman | Feb 8, 2011 4:07:21 PM

Matt,

I don't believe the statutes work in the way you claim they do. If you could know what a statue authorizes and what it doesn't by just taking it at face value, what would be the point of law schools? Or judges? Or the Supreme Court?

And virtually *anybody* would oppose unlimited rights to refuse *anything* based on religious belief or conscience. I simply don't believe the legal system is wacky enough to permit that. At minimum there would need to be safeguards that the person who refused to perform some task actually was religiously or morally opposed. Otherwise a medical worker could claim to be morally opposed to emptying bedpans if he or she didn't like to do it. I am not a lawyer, but I refuse to believe the existing statutes give such broad rights to, say, medical employees and none at all to employees or patients.

If nobody has ever invoked the Church Amendment for something other than abortion or sterilization, it indicates to me that it must be a futile legal tactic. I am grateful for all the information you have supplied, but I simply refuse to believe that the real-life results of the existing laws could be what you seem to be saying they could be.

Posted by: David Nickol | Feb 8, 2011 4:27:18 PM

David--your contention, your argument, is that the statute doesn't mean what it says, for various reasons boiling down to the fact that you don't like what it says. That is your argument why the regulations exceed the statutes. That is an incomprehensible argument in the American legal system, and every lawyer and almost all people reading these comments recognize that. It is a stretch to even call what you are proposing legal reasoning. You don't recognize it, but I can't change that. I can only leave the floor open for other comments, now that we have made abundantly clear the character and quality of your arguments.

Posted by: Matt Bowman | Feb 8, 2011 4:31:42 PM

Matt,

I would love to see other opinions. I do have one observation. You are talking about what the statutes *say*. I am talking about what they *do*. The statutes have been in effect for decades. I may be mistaken, but I also believe the Bush regulations are currently in effect until the Obama administration comes up with new ones. And in fact we do not have a situation where *anybody* (in the medical field, where there's HHS funding) can get out of doing *anything* just by claiming to have a moral or religious objection to it. The statutes and regulations don't even do effectively what you and I agree they are supposed to do -- prevent people from being forced to perform, or assist in the performance of, abortion. And clearly they don't, in actual practice, protect people who make idiosyncratic claims of conscience.

So you talk about a theoretical legal world in which there are broad protections for any and all conscience claims, but what I see is a real world in which people don't have (or aren't trying to exercise) the kinds of freedoms they have (or so you say) on paper. Having a statute that reads as if everyone had extremely broad freedom of conscience is quite different from having a country in which everyone does indeed have and exercise that freedom of conscience and where someone suffers consequences if they deny you that freedom.

Posted by: David Nickol | Feb 8, 2011 6:15:03 PM

There's no distinction between what the statutes say and what they are supposed to do. What they say is what they are supposed to do. That is what they say. Your viewpoint is foreign to any reasonable approach to this issue. Not even the most extreme liberal judge would interpret c2 and d to be limited to abortion using these "reasons." Let's see if anyone else can think of an argument that the regulation exceeds the statute.

Posted by: Matt Bowman | Feb 8, 2011 6:23:10 PM

Matt,

You say: ". . . . your contention, your argument, is that the statute doesn't mean what it says, for various reasons boiling down to the fact that you don't like what it says."

If we take the First Amendment, it would be difficult, it seems to me, to claim that it either does or does not "mean what it says." If one thinks that "freedom of speech" in the First Amendment gives anybody the right to say anything they want, any time they want, anywhere they want, one is badly mistaken. It is only after innumerable court cases that we have a body of knowledge as to what "freedom of speech" means. Since as far as anyone has been able to say here, part (d) of the Church Amendment has never been invoked in court as a justification for refusing to perform a medical procedure other than abortion or sterilization. Therefore, while we can all agree that the statute says what it says, it does not seem to me we know the meaning of it in the way we know the meaning of the First Amendment. What the words say is one thing. How they may be used and interpreted by the courts is quite another.

Posted by: David Nickol | Feb 8, 2011 6:25:08 PM

When Rob was asking what the statutes mean in relation to the regulation, he was asking what they mean in the American legal system. He was not asking what they mean in David Nickol's wonderful world of laws mean whatever he thinks they should mean. Once that is pointed out, and all your best arguments shown to be absurdity, if you continue to answer the question using the rules of your world, you have gone off topic. Church c2 and d say they apply to any religious belief in those particular contexts. You are no longer engaging in good faith by suggesting the contrary. Stop hijacking another MOJ comment thread.

Posted by: Matt Bowman | Feb 8, 2011 6:59:17 PM

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