Editor’s Note: This blog entry by special guest author Dr. M. Sara Rosenthal is part of our miniseries on conscientious objection including the Editor’s introduction and blog entries by Ruth Groenhout, Karey Harwood, and Laura Guidry-Grimes on this subject.

This month, the Trump Administration introduced a mechanism through HHS for healthcare providers to object to performing procedures they find morally distressing or objectionable based on their religion to “ease the way for doctors, nurses or other medical professionals to opt out of providing services that violate their moral or religious beliefs.” For more information see:

• https://www.washingtonpost.com/news/to-your-health/wp/2018/01/18/new-hhs-civil-rights-division-charged-with-protecting-health-workers-with-moral-objections/?utm_term=.81912e085354  and
• https://mobile.nytimes.com/2018/01/26/opinion/protecting-conscientious-providers-of-health-care.html?referer=http://m.facebook.com

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HHS will soon create the Conscience and Religious Freedom Division — an entire division devoted to conscientious objection.  The vast majority of bioethicists find this announcement to be cause for concern because it introduces further barriers to healthcare for many groups already disenfranchised or vulnerable. But it also violates what bioethicists see as clear duties of care inherent in the medical profession. (See: https://www.reuters.com/article/us-usa-healthcare-religion/u-s-government-to-shield-health-workers-under-religious-freedom-idUSKBN1F7262)

I have mixed feelings about this new division, which may become a cautionary tale for the Trump Administration. Moral diversity and “moral objection” swings many directions, and by creating an official conscientious objection division, the Trump Administration must now allow for a wide range of moral protections for practitioners.  In some ways, this could provide unanticipated protections for the very groups the Administration seeks to deride.

First, most hospitals already have these institutional policies in place. As a clinical ethicist and Chair of our hospital ethics committee, I invoke these policies frequently to protect and preserve the moral integrity of healthcare providers involved in care plans they find objectionable. I have rarely invoked these policies, however, for objections on religious grounds. I have mostly used them to relieve moral distress over medically inappropriate care plans in which limits to autonomy have not been properly asserted or championed by the institution, such as in situations where surrogates are demanding treatments that make no medical sense, and practitioners feel they are crossing ethical lines to appease surrogates. I have also invoked these policies to excuse practitioners from being forced to care for patients who have personally threatened them or their families, which sometimes includes situations where patients or surrogates are making personally racist statements, or when hateful misogynists make statements against their female doctors. In the Trump Era, healthcare providers who are most exposed to racist comments are not African Americans, but immigrants with accents from all parts of the world – many of whom are permanent residents or U.S. citizens.

In many of these cases, Conscientious Objection has worked well; in our institutional policy, we have a mechanism for transfer of care, and in extreme situations, we will transfer care to our Chief Medical Officer. Thanks to the Trump Administration, practitioners who experience racist patients, can now use the HHS’ new division to “object to care” on moral grounds. White supremacist patients, or patients who are anti-immigration, may be in for a shock when their practitioners “object” to caring for them because the patients’ personal views violate their moral integrity. Practitioners who are Orthodox Jews may decide that they don’t want to work with female colleagues and invoke “conscientious objection” to having to converse with another female colleague. Same goes for other paternalistic religions that exclude women as equals. The Trump Administration may become mired in all kinds of sticky cases arising from conscientious objection that has nothing to do with reproductive care. In fact, LGBT practitioners may decide that they “object” to being forced to caring for patients who don’t support LGBT rights, too. Or, in a politically divisive country, perhaps Democrats can now morally object to caring for Republican patients, or vice versa. What might count as a legitimate claim of moral objection? Good luck with that.

Our institution has found clear guidance from a 2012 review by Paul-Emile on accommodating racist patients’ requests [See: 60 UCLA L. Rev. 462 (2012)]. After many difficult cases, we have now accepted that it’s probably good policy to grant patient requests for changing practitioners, where feasible or possible through transfer of care.

Transfer of care is an important caveat in any ethical conscientious objection policy, and the HHS’ new division will be no exception. In cases where the objector refuses to transfer care because of claims of “moral complicity”, this is where such policies become unworkable. I’ll be looking carefully for that transfer “parachute clause” in the division’s language.

So, in response to the new HHS entity: be careful what you wish for. Conscientious Objection swings both ways. Most of the care providers will object to care plans that probably have nothing to do with abortion — considering that procedure is almost non-existent in most U.S. states now. This new, controversial division may lead to a tsunami of moral assertions that block access to care for its most enthusiastic supporters because they may not realize that some of their own moral assertions may not be shared by the practitioners they will confront in the real world.

1. Sara Rosenthal, Professor and Founding Director, University of Kentucky Program for Bioethics.