Conscience and Religious Freedom Division Threatens Patient Autonomy

In a significant blow to Americans who wish to exercise their right to die on their own terms, the Trump administration announced in January that it has created a new Conscience and Religious Freedom Division in the Department of Health and Human Services’ Office of Civil Rights. According to the official press release, the office was “established to restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.”

Roger Severino heads the Office of Civil Rights at HHS
Credit:politico.com

The move threatens both reproductive freedoms and access to a variety of end-of-life options, including physician aid in dying, voluntarily stopping eating and drinking, and terminating life support when the possibility of meaningful recovery no longer exists.

The new division will not enact any laws. According to its website, it is tasked with enforcing anti-discrimination statutes that already exist. The majority of these pertain to women’s reproductive health, specifically the right of healthcare providers to refuse to provide contraception or perform abortions or sterilizations on religious or moral grounds. However, Section 1553 of the Affordable Care Act extends conscience protections to physicians and healthcare organizations that refuse to “provide any health care item or service furnished for the purpose of causing, or for the purpose of assisting in causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing.” Any organization that is found guilty of discriminating against providers who opt out of these services can lose access to federal funds.

According to Compassion & Choices, the Conscience and Religious Freedom Division will offer the services of federal attorneys to providers who request representation in discrimination claims.

A Solution in Search of a Problem?

The creation of the OCR’s Conscience and Religious Freedom Division is consistent with the Trump administration’s willingness to acquiesce to the demands of the Religious Right. And it appears to fulfill his campaign promise to “vigorously uphold the rights of conscience and religious freedom” in the United States. But laws that protect healthcare providers who choose not to participate in procedures that run counter to their religious or moral beliefs have been in effect since 1996. And despite the claim from OCR director Roger Severino that “governments big and small have treated conscience claims with hostility instead of protection,” every state that permits medical aid in dying specifically and explicitly exempts any provider who chooses not to participate on moral grounds. Thus, the rights of providers are already well protected. Unfortunately, the rights of vulnerable, terminally ill people are far less secure.

Credit: wisbar.org

Even in states where medical aid in dying is legal, patient access is already curtailed due to the proliferation of healthcare organizations owned or operated by the Catholic Church. These providers adhere to the Ethical and Religious Directives for Catholic Health Care Services, a lengthy document that outlines prohibitions against a host of medical interventions, including assisting patients who wish to bring about their own death. And their numbers are growing. According to the ACLU, as of 2016, nearly 15 percent of all acute care hospitals in the United States comply with the Directives, an increase of 22 percent since 2001. (The ACLU is currently suing a number of Catholic healthcare providers for refusing to provide essential emergency services to women in need of care — a violation of federal law.)

A Disturbing Trend

This latest attempt by the executive branch to limit patient autonomy is part of a disturbing trend of politicizing the nation’s health. Last year, the House Committee on Oversight and Government Reform voted along party lines to block the District of Columbia’s Death with Dignity Act, a law that had the overwhelming support of D.C. residents and was approved by the D.C. City Council by a vote of 11-2 in November, 2016.

Fortunately, the resolution failed to reach the House floor or the Senate by the deadline of Feb. 17, 2017, so it never came up for a vote. However, the fact that the effort proceeded at all points to the continued determination of some legislators and the Trump administration to subvert the will of the American people, who consistently express support for death with dignity laws.

Obviously, the fight for death with dignity is far from over in the United States. Measures are moving forward in a number of states, including Alaska, New York, New Jersey and Kansas. But interference at the federal level may threaten implementation and make  access more difficult for people who need information, access and compassionate care.

If you, like the people here at SevenPonds, support the right of every individual to make informed choices about their own lives and their own deaths, please let your legislators know how you feel.

And remind them that conscience and religious freedom are two way streets.