When Religious Freedom Clashes with Access to Care

I. Glenn Cohen, Holly Fernandez Lynch, Gregory D. Curfman

NEJM

At the tail end of this year’s Supreme Court term, religious freedom came into sharp conflict with the government’s interest in providing affordable access to health care. In a consolidated opinion in Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Burwell (collectively known as Hobby Lobby) delivered on June 30, the Court sided with religious freedom, highlighting the limitations of our employment-based health insurance system.

Hobby Lobby centered on the contraceptives-coverage mandate, which derived from the Affordable Care Act (ACA) mandate that many employers offer insurance coverage of certain “essential” health benefits, including coverage of “preventive” services without patient copayments or deductibles. The ACA authorized the Department of Health and Human Services (HHS) to define the scope of those preventive services, a task it delegated to the Institute of Medicine, whose list included all 20 contraceptive agents approved by the Food and Drug Administration. HHS articulated various justifications for the resulting mandate, including the fact that many Americans have difficulty affording contraceptives despite their widespread use and the goal of avoiding a disproportionate financial burden on women. Under the regulation, churches are exempt from covering contraception for their employees, and nonprofit religious organizations may apply for an “accommodation,” which shifts to their insurance companies (or other third parties) the responsibility for providing free access. However, HHS made no exception for for-profit, secular businesses with religious owners. . .


Cohen IG, Lynch HF, Curfman GD. When Religious Freedom Clashes with Access to Care. N Engl J Med 2014; 371:596-599 August 14, 2014 DOI: 10.1056/NEJMp1407965

Book Review: Conflicts of Conscience in Health Care: An Institutional Compromise

Sean Murphy*

Conflicts of Conscience in Health Care: An Institutional Compromise

Lynch HF. Conflicts of Conscience in Health Care: An Institutional Compromise. Boston: The MIT Press; 2008. 368 p. ISBN: 9780262123051

Conflicts of Conscience in Health Care was published in 2008 as the 24th volume in the Basic Bioethics series from the Massachusetts Institute of Technology. It is an American book dealing with the American political and legal controversies over freedom of conscience in health care. However, the discussion of the American experience by Holly Fernandez Lynch is relevant elsewhere, since the United States has the most extensive and varied network of protection of conscience legislation in the world.

While acknowledging that freedom of conscience is of concern to all health care workers and institutions, Fernandez Lynch focuses exclusively on physicians. This carefully and deliberately restricted focus is one of the strengths of the book.

After a preface and introduction, discussion and argument occupy about 260 pages, supplemented by 53 pages of end notes, many of which offer expanded comment on the text. A good 12 page index has been included, as well as four pages of cited statutes and cases. The earliest source found in a list of 300 references is from 1951; the rest date from 1972 to 2007.

Goal

The author introduces her subject with a statement from Pope John Paul II:

. . . to refuse to take part in committing an injustice is not only a moral duty, it is also a basic human right. Were this not so, the human person would be forced to perform an action intrinsically incompatible with human dignity, and in this way human freedom itself, the authentic meaning and purpose of which are found in its orientation to the true and the good, would be radically compromised.

Fernandez-Lynch does not argue from a Catholic or even religious perspective. Nonetheless, she describes this as “a powerful statement about the nature of conscience, complicity in morally objectionable actions, and avoidance of injustice.” She adds that it is generally acceptable to religious and nonreligious people alike, regardless of their political views.

This reflects the spirit in which she pursues her project. As the subtitle of the book indicates, she is seeking a compromise that will provide “maximal liberty for all parties.” She believes that freedom of conscience for physicians and the provision of legal medical services are both important social goals, and that they are not incompatible. Thus, she rejects “all-or-nothing” strategies that seek “total victory.” Ultimately, quoting the Protection of Conscience Project, she affirms that all legitimate concerns can be met by “dialogue, prudent planning, and the exercise of tolerance, imagination and political will.”

Context of the discussion

The author recognizes that she writes with the abortion controversy more or less continuously in the background. But she insists – correctly, in the Project’s view – that “limiting the debate to tired abortion rhetoric could be quite dangerous if it prevents meaningful discussion” of broader issues. Referring to a number of other controversial issues and the impact of ongoing technological developments, Fernandez Lynch predicts that these, combined with “increasing diversity of health-care providers” have “the potential to create a perfect storm.”

Overview

The shape of the compromise proposed by Fernandez Lynch can be outlined while describing the book’s structure. It consists of three main parts.

The first reviews American protection of conscience laws and examines four paradigms of medical professionalism. The author selects one of these paradigms – physician as gatekeeper – as most suited to the compromise she seeks.

In Part II, Fernandez Lynch explains what she believes to be the source of the current controversy. Applying the professional model of physician as gatekeeper, she observes that an objecting physician may sometimes be the only available “gatekeeper” who can open the gate to a desired service. Her solution: tell patients about other gates and gatekeepers, redistribute them, and, if necessary, provide more gates and more gatekeepers. Or, to paraphrase anti-euthanasia activists, if access is the problem, eliminate barriers to access, not objecting physicians.

To accomplish this, the author suggests that a designated institution ensure access to services through effective distribution of health care resources and connect patients with willing physicians. Hence, the subtitle of the book: an institutional compromise. Fernandez-Lynch identifies state licensing boards as the institutions best placed to accomplish this. The last two thirds of the book describes how the compromise might be implemented in practice. It includes a model statute and extended discussions about calculating patient demand and meeting it through the supply of willing physicians. . .


Murphy S. Book Review: Conflicts of Conscience in Health Care: An Institutional Compromise. Protection of Conscience Project; 2009 Dec 17.