The Trump-era conscience rule allowed physicians the right to decline to perform procedures that violated that physician’s individual religious or moral conscience. Essentially, the rule denied federal funding to hospitals that would not provide an opt-out program for their physicians.
The conscience rule was never actually put into effect due to the ruling of a New York federal judge, on the grounds that the Department of Health and Human Services did not enact the rule constitutionally. Furthermore, 46 states currently have laws that protect physicians from being sued for declining to perform surgeries that violate their conscience.
So, if the conscience rule never actually went into effect and won’t change current protections for doctor’s rights, why does it matter that the Biden administration plans to remove it entirely?
The ongoing case Minton v. Dignity Health carries serious implications for state laws that currently protect physicians’ rights. In 2017, Evan Minton scheduled a hysterectomy with Mercy San Juan Medical Center (MSJMC), a Catholic hospital that is part of the larger Dignity Health system. When an MSJMC nurse learned that Evan was a transgender man, the hospital canceled the surgery, citing ethical concerns. Minton rescheduled and received the surgery with a different hospital within the Dignity Health system.
Following the fiasco, Minton filed a lawsuit against Dignity Health for unspecified damages. His case also seeks to block Dignity Health’s use of the “Ethical and Religious Directives for Catholic Health Care Services” which is issued by the United States Conference of Catholic Bishops. Since the Supreme Court declined to hear the case, this means that Minton can freely pursue the lawsuit in California courts. There are many similar ongoing cases in other states.
Depending on the outcome of Minton v. Dignity Health and similar cases, and with the removal of the HHS conscience rule, doctors could be left without either state or federal protection.
But would doctors with religious or ethical concerns quit rather than perform surgeries that violate their conscience? Recent history indicates that it is highly likely.
In late 2021, the Centers for Medicare and Medicaid Services finalized the requirement for mandatory vaccination of all healthcare workers. Rather than vaccinate, thousands of healthcare workers quit or were furloughed.
The healthcare workers that left the medical field over the vaccination requirement represented less than 2 percent of the 17 million in the healthcare field. But the exodus demonstrates that some would rather quit than violate certain beliefs.
Nearly 90% of Americans support vaccination. However, a 2005 survey found that religious beliefs inform over half of all physicians. If doctors were forced to perform a procedure that they believed caused harm, the evidence indicates many doctors will just quit.
The Association of American Medical Colleges predicts that there will be a shortage of over 124,000 doctors in the coming years. If doctors soon get sued or fired for refusing to violate dearly held beliefs, that number will surely rise.
Perhaps some religious or ethically bound doctors could seek different specialties where no ethical dilemmas will present – such as in podiatry or cardiology.
But looming federal and state policy shifts on the conscience rule could harm women’s obstetric and gynecological care where ethical dilemmas frequently abound. There is already a shortage of nearly 9,000 OBGYNs and some U.S. counties do not have a single OBGYN at all.
Certainly, cases like Evan Minton’s are rare. Individuals who need such care can assuredly receive it from one of the many doctors willing to assist. But compelling some doctors to violate dearly held beliefs limits access to care for everyone.
McKenzie Richards is a policy associate at the Pacific Research Institute.