Statue, Saint Vincent DePaul
Statue, Saint Vincent DePaul

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Not Set in Stone: Bush’s rule never saw the light.

For a short period this year, healthcare providers across the country were free to follow their consciences. President Bush’s final act in office was something known as the “conscience rule,” a provision meant to protect workers in federally funded facilities from providing services they found morally objectionable. The rule went into effect on Jan. 20, the day its ultimate destroyer took over. The Obama administration allowed consciences a one-month leash before announcing its intention to reverse the rule in early April, following a 30-day comment period.

The short-lived rule took its inspiration from decades-old federal legislation that remains on the books: the Church Amendments, the Weldon Amendment, and the Public Health Service Act, which explicitly protect workers from being forced to perform abortions and sterilizations against their will. The Bush rule interpreted that protection a little too broadly for Obama’s taste, extending protections to a whole range of moral objections—from the dispensation of contraception to the use of stem cells in biomedical research. And under the rule, any worker at an affected healthcare provider could claim a grievance, from the receptionist who schedules an abortion appointment to the janitor who cleans up after one.

The rule will have been on the books for only two-and-a-half months by the time it’s overturned. Let us take a moment to remember Bush’s conscience rule, snatched from us far too soon. What consciences were awoken? What services denied? What bureaucratic roadblocks constructed, only to be dismantled again?

FACILITIES AFFECTED: 584,294. That’s the number of healthcare providers and their subcontractors who benefit from federal funds—and must, under Bush’s rule, accommodate the moral objections of their employees. Many of those half-million entities trade daily in possible conflicts of conscience—hospitals that provide abortions, pharmacies that dispense contraception, and laboratories that conduct stem-cell research. But in order to appease the base one final time, the Bush administration went all-out. The rule also applies to providers of less morally contentious services, like schools of dentistry, occupational therapy, and podiatry. Clearly, the podiatrists of America have been implicated in this debate like never before.

And yet, the American Podiatric Medical Association, based in Bethesda, remains demure about its own role in the promotion of the conscience. James Christina, director of scientific affairs for the association and a podiatrist, said he was not aware of significant conscience issues in his field. “Some of the podiatry schools, since they’re affiliated with the other medical schools, might have gotten locked in there,” he says. “But podiatrists don’t prescribe contraceptives, or anything like that.” Moral conflict in the podiatry field may have to wait for science to catch up. “As far as I know, there’s not yet any stem-cell research in wound-healing or diabetic foot care,” he says, adding that future conflicts are possible.

BUREAUCRATIC WASTE CREATED: The annual cost of conscience protection, as projected by the Bush administration, is minimal. The main bureaucratic hurdle of conscience protection: Completing a form certifying compliance with the rule.

“We estimate that each of the 584,294 entities will spend an average of 30 minutes on these activities,” the rule reads. Since Health and Human Services certifications require a “CEO, CFO, direct owner, or Chairman of the Board” to do the signing, that half-hour would have cost each entity $72.77, or half the median loaded hourly rate for a top earner. Multiply that by 584,294 entities, and you get an estimated yearly cost of $42.5 million dollars, plus an additional $2 million cost for “collecting and maintaining records.” Don’t start prorating that figure over the past two months: The Obama administration didn’t jump to send off 584,294 conscience rule certification forms upon assuming office, meaning that the $44.5 million (or by Obama’s math, $43.6 million) price tag will be off Obama’s conscience.

More likely, the only administrative waste incurred as a result of the rule will fall on the Obama staffers tasked with rolling it back. Like a flaming bag of excrement placed upon the steps of the White House, perhaps the real purpose of Bush’s final act was to force his successor to clean it up.

CONSCIENCES ACCOMMODATED: Did the conscience rule’s two-month lifespan actually allow any healthcare workers to follow their hearts instead of their job descriptions? It’s not clear. Healthcare providers on the fringes of the abortion debate—think Catholic outfits like D.C.’s Providence Hospital or Planned Parenthood centers—would have been largely unaffected by the rule, as prospective employees with moral objections know what’s up. Even in more general practices, evidence of the nightmare scenario—a doctor forced to perform an abortion against her will—is difficult to pin down.

But with the conscience rule’s expansions, many more practitioners can claim moral conflict, and anecdotal evidence of less-classic conscience cases abounds. The Christian Medical and Dental Associations (CMDA), a prominent supporter of the rule, submits the following [PDF]: Frank Block, Jr., an anesthesiologist who turned down a job offer upon learning he’d be required “to provide anesthesia for abortions;” Dr. Shelley Phillips, who resigned from her San Antonio, Texas, practice instead of being forced to prescribe contraception to unmarried women; Vicki L. Duncan, a doctor who stopped performing intrauterine insemination procedures entirely when she was told that refusing to perform the procedure for a lesbian couple would likely result in a lawsuit; Dr. Gregg R. Albers, who graciously accepts “gay men and women” as patients but still reserves the right to “take the opportunity to lovingly say, here is why we believe so strongly that ‘this’ is wrong.”

For two months, were these doctors and those like them allowed to practice freely? Not exactly. Margie Shealy, vice president of communications for the CMDA, says the abbreviated time frame makes finding a practitioner positively affected by the rule “like finding a needle in a haystack.”

Dr. David Stevens, the organization’s CEO, says that even with a longer shelf life, the rule would largely serve to protect those medical professionals who are already denying services. “The idea that all of a sudden, doctors, or insurance agencies, or nurses are going to stop performing services for their patients has a fatal assumption beneath it,” says Stevens. “These providers have not been regularly violating their consciences in their work,” he says. “Those who oppose abortions have not been participating in abortions in the past. There’s nothing you can do to get a pro-life doctor to perform an abortion,” he says. In other words, Frank Block was never knocking women out for abortions, and Gregg Albers was never condoning homosexuality. What the rule has done, Stevens says, is make those decisions consistent with the law.

PUBLICITY EARNED: Why would the Bush administration go through all the trouble of setting up a procedural hurdle he knew would be toppled shortly upon leaving office? Publicity, baby. The conscience rule didn’t just resurrect the longstanding federal conscience protections in the public consciousness. It also refocused their intent. Those laws were drafted to provide protections for both those who provided abortion services and those who refused them. Under the law, employees cannot be discriminated against based on their moral opposition to abortion or their moral opposition to denying one. Bush’s rule, however, only explicitly expounded upon the rights of those with pro-life consciousness, and media discussion followed along with the newly framed debate.

“I think it’s provided us the opportunity to educate people on this issue,” says Stevens. “I’ve heard ‘I had no idea that I was breaking the law trying to force this doctor to perform a procedure,’” he says. “This is where these regulations can have a larger educational role.” Still, Stevens hopes the rule remains on as more than just a token. “I think there’s hope that it will continue. We’re going to try to sustain the rule. A law without any enforcement is meaningless.”

Photo by Darrow Montgomery.