Editor’s Note: This blog entry is part of our miniseries on conscientious objection including the Editor’s introduction and blog entries by Ruth Groenhout and Karey Harwood on this subject.

The newly formed Conscience and Religious Freedom Division of the Office for Civil Rights in HHS raises a host of questions that should be considered from multiple angles. I want to address this issue as a clinical ethics consultant who has been involved in conscientious objection (CO) policy discussions at multiple hospitals in different locations in the U.S. I have also served on Healthcare Equality Index initiatives and trained hundreds of staff on ethical care for LGBTQ+ patients. Because my experiences are in acute care hospitals, I will not comment directly on the ethically urgent issues that arise in other contexts, such as EMS and fertility clinics.

It is worth noting some important ambiguities and unknowns related to this Division’s role and powers. Based on the Division’s website and their recent press release, the Division will evidently force hospitals to give protections to healthcare professionals (HCPs) who claim CO, which could mean that HCPs cannot be fired for refusing to provide care to certain patients on the basis of conscience or religious conviction. It is unclear how much flexibility hospitals will have in training staff and promising protections for patients. For example, the Division welcomes complaints from HCPs who “feel pressured by employers to ‘perform, accommodate or assist with’ procedures that violate their beliefs.” Depending on what is meant by “pressuring,” hospitals could be tightly restricted in how they train staff on LGBTQ+ patient care, legal abortion care, or potentially other areas of cultural competence. Additionally, hospitals might not be permitted to ask staff to make reasonable referrals inside or outside the institution when they invoke CO, or even train staff on how to make such referrals, since doing so would presumably pressure them to accommodate patient requests.

A hospital should be a safe space for anyone to receive care, period. A hospital should actively take steps to ensure that they are not rendering patients vulnerable or compounding their vulnerability. Healthcare institutions require a great deal of public trust, as do HCPs who have role-specific obligations to protect and advocate for every patient. One could argue that this Division will likely have few real effects for patients, given the potentially long process that HCPs would have to go through to have a complaint acted on by the Division. We will always have difficulty measuring the consequences of the Division. Just its existence poses a threat to vulnerable patients. Lambda Legal’s 2009 survey found that 56% of lesbian, gay, and bisexual patients and 70% of transgender and gender non-conforming patients have experienced at least one of the following forms of discrimination: being refused needed care, being subjected to harsh or abusive language by HCPs, HCPs refusing to touch them or using excessive precautions, being blamed for their medical problems, and HCPs subjecting them to physically rough or abusive treatment. For patients like this, they now have the added worry that HCPs are empowered by the federal government to treat these patients and their requests differently – to discriminate against who they are and their healthcare needs in the name of “conscience.”

The effects of would-be patients avoiding care, losing trust in healthcare institutions, and experiencing all of the microaggressions and overt aggressions when they do seek medical assistance, cannot be fully captured by any data collection process. Another consideration is how the existence of the Division could lead to hospitals losing motivation for creating more inclusive posters, brochures, forms, and electronic medical record systems. I have seen hospitals, both adult and pediatric and in both blue and red (Democrat and Republican) areas, trying to make the healthcare environment more welcoming. It is difficult to measure to what extent the threat of the Division will affect these efforts. If an electronic medical record system got a new field for a patient’s preferred name, and staff were encouraged to take advantage of this to document when a transgender patient’s name does not match their legal name, could HCPs bring a complaint to the Division that they were being pressured into accommodating something that they don’t believe in?

A hospital is, among other things, a moral community. While a hospital should respect values pluralism and a diversity of worldviews, it still should maintain certain moral positions. For example, HCPs have a prima facie obligation to protect patients from preventable suffering. HCPs should only practice those procedures that they are sufficiently trained to perform with proven skill, so they do not subject patients to incompetent and harmful care. Another fundamental moral position of a hospital is that all patients should be respected equally as persons, that patients do not have to prove their merit in some way to be treated as such. Unrepentant thieves receive excellent care at hospitals. As do arsonists. As do abusive partners. As do mass shooters. Within the walls of a hospital, healthcare professionals and staff are supposed to be united in caring for patients from any background without judgment on their worthiness. The Division of Conscience and Religious Freedom undermines the shared sense of moral purpose among HCPs, and it lays the groundwork for antagonisms among staff. The moral community in a hospital is never completely unified of course, but the federal government has now ruptured that community to its core fundamental principles.

Regarding conscientious objections, hospitals could have official policies, departmental protocols, and practices that have never been formalized. Part of the challenge is defining ‘conscientious objection,’ since hospitals cannot allow staff to refuse to participate in patient care for any reason whatsoever. For example, allowing “I don’t believe in it” to be an automatic exemption from doing any task or talking to any patient could quickly turn to chaos, especially if those claims were never part of any process or review and instead had to receive complete protection. Matters of conscience should be separated from matters of ignorance and other professional limitations. Based on certain worldviews, some procedures could morally implicate HCPs, such as when HCPs do not believe that abortion is morally permissible, so facilitating the actual abortion would be problematic for their integrity. This kind of argument is very different from HCPs refusing to provide any patient care to a woman who has ever received an abortion, which would not implicate the HCP in the abortion itself. (This is not to endorse this worldview but merely to comment on the internal logic of such a worldview.) Hospitals also need to establish procedures for handling claimed COs because of how these refusals by staff could harm patients and lead to discriminatory patterns.

In the bioethics literature, there is widespread consensus that there should be limitations on the extent to which hospitals should try to accommodate HCPs’ CO claims. A 2015 policy statement from the American Thoracic Society, which was informed by this literature, states the following criteria: “1) the accommodation will not impede a patient’s or surrogate’s timely access to medical services or information, 2) the accommodation will not create excessive hardships for other clinicians or the institution, and 3) the CO is not based on invidious discrimination.” In his analysis of this issue, bioethicist Mark Wicclair also argues that patients/surrogates should not be denied referrals, and HCPs should be diligent about giving advance notice about their possible COs to their supervisors. The Committee on Bioethics of the American Academy of Pediatrics similarly emphasizes the importance of providing patients information and referrals, even when the HCP has a CO. This new HHS Division is broadly giving HCPs latitude in how they invoke CO, putting the burden on hospitals to accommodate under threat of losing federal funding. It does not appear that the Division will consider the limitations proposed by bioethics experts or medical societies on this issue.

How to manage HCPs’ refusals to provide care, referrals, or information to patients in the name of conscience or religion freedom is a sensitive issue that warrants nuanced conversation among the relevant experts and affected patient populations. Bioethicists, hospitals, hospital and medical associations, and patient groups should be collaborating on how to respond to the threat posed by this Division. Some big questions need to be decided, and it is not evident that the Division will have the necessary expertise, contextual sensitivity, or transparency to handle these questions consistently and fairly. For example:

• In terms of accommodating COs, should there be a difference between an objection to participating in gender confirmation surgery vs. providing standard care for a transgender patient?
• What if HCPs refuse to provide care to patients with HIV/AIDS?
• What if they start refusing to provide care to any patient who is perceived as “morally unclean,” including a mass shooter who arrives in the emergency department?
• What should a hospital do if they have so many nurses refusing to care for transgender patients in a particular unit that that unit functionally cannot accept those patients anymore?
• Given how patients can be more vulnerable in some geographic regions and contexts than others, how should hospitals respond to the particular needs of vulnerable patients who could receive suboptimal care from HCPs who refuse to provide information or referrals and also refuse to be trained in the name of “conscience?”
• What if there are no viable alternatives for these patients?

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Bioethicists, including clinical ethics consultants, have weighed in on these questions. Many of these questions should not be “big” questions at all, yet we may have to start dealing with a harsher and scarier reality. I will openly express my pessimism here that the Division will be sensitive to the larger situation posed by expanded CO protections.