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How the Bush Administration's Approach to Healthcare Providers' "Conscience Rights" Illustrates Its Troublingly Unilateral Exercise of Power


Tuesday, Dec. 23, 2008

George Will recently published an insightful column on the decision by the Bush Administration to direct funds from the Troubled Asset Relief Program (TARP) to General Motors and Chrysler. He noted that the TARP funds were not intended for such a purpose, reasoning that "if Congress had known that TARP . . . was to become an instrument for unconstrained industrial policy, it would not have been passed." His point was that the Bush Administration has aggrandized executive power, and effectively sidelined Congress, so dramatically that the constitutional separation of powers has been threatened.

Will has put his finger on a fundamental fault in the Bush Administration that threatens the foundation of the federal government. Over and over, the Administration has ignored Congress to pursue its unilateral policies. Most Americans are familiar with the Administration's repeated public declaration that it has an unreviewable power to conduct the war on terror (a claim the Supreme Court has not heeded). Meanwhile, on the domestic side, though much less-publicized, spending also has been subject to executive caprice, especially when the spending involves religious groups. The result is that public policy is whatever one man says it should be.

As I have explained in a prior column, initially the Administration waited for Congress to enact a law governing the White House's Faith-based Initiatives program, which would have permitted participating churches to discriminate on the basis of religion in the pursuit of those programs. Then, when it could not win in Congress, it just issued its own executive regulations permitting such discrimination. So much for checks and balances, not to mention the Establishment Clause.

Most recently, the executive has expanded so-called "conscience rights," which are more accurately named "conscience privileges." In so doing, the Administration trespassed three constitutional boundaries at once: the one between the federal branches of government, another between the federal government and the states, and the third between church and state.

The Bush Administration's Recent Unilateral Action on Conscience Privileges

Last week, the Department of Health and Human Services expanded the ability of healthcare providers to refuse to provide healthcare or information in circumstances involving medical care that is at odds with the provider's religious beliefs. Institutions were already under a federal prohibition on discriminating against doctors who refused to perform abortions or provide abortion referrals. This new regulation goes further, with some believing that it could insulate healthcare providers from dealing with contraception or pharmacists from having to dispense perfectly legal medications related to contraception, rape, or unwanted pregnancy. The rule works by requiring the states receiving federal funding to show that they protect the conscience privileges indicated in the federal regulation.

Congress did not pass such a law, and so the Bush Administration took it upon itself to set social policy in this delicate arena. And it did so in the face of objections coming from many members of Congress, governors, state attorneys general, and medical associations. Congress is charged with enacting the laws that govern, in no small part because it is deliberative, slow, and cumbersome. Public policy affecting so many interests -- and affecting women disproportionately -- needs to be processed through the messy, but ultimately rigorous process that is legislation. Under current Supreme Court doctrine, such a tactic is unlikely to ever be held by any court to be a separation of powers violation, but it sure smells like one.

Not Only a Separation-of-Powers Issue, But Also a Federalism Issue and a Church/State Issue

Not only has the executive forayed into Congress's territory with its newly expanded conscience privileges, it also has usurped the states' power over standard-setting for professionals and the definition of good medical care. Some states have so-called "conscience clauses," though they can be different from one another; some do not.

As I have discussed in a previous column, I think such clauses are problematic, but setting those concerns aside, the states are far better equipped to experiment in this arena than is the federal government. There is no constitutional right to avoid the professional obligations of a doctor or pharmacist with respect to contraception and abortion, which means that this is all about drawing the appropriate public policy line. There are many patients seriously affected by conscience privileges -- from women recently raped and denied emergency contraception; to homosexual victims of AIDS, who could be denied lifesaving treatment because the healthcare provider disapproves of how the disease was contracted. If conscience clauses are upheld against constitutional attack, it is better to see how their different iterations affect public health than to impose a one-size-fits-all formula, which stifles policy development and experimentation.

Finally, the regulation crosses the boundary separating church and state. The executive is empowering the provider's religion to dictate the availability of medical treatment. Health is being determined by the religious status of the provider, rather than the neutral health needs of the patient. Doctors and pharmacists can now legally impose their religious worldviews on treatment plans, even if it means giving the patient less than what the medical universe has to contribute to their health.

This is a particularly insidious religious preference, because it ignores and suppresses the reality that there are two sets of religious beliefs in the treatment room, not just one. The regulation creates a preference for the religious beliefs of the healthcare provider over the beliefs of the patient. Yet, the medical treatment of the patient should be driven by the needs and religious beliefs of the patient, not those of the provider.

For those medical providers who do not wish to put the patient first in circumstances involving abortion, contraception, or related issues, there are many specialties they can choose that do not involve questions related to conscience clauses. But for them, religion means never having to make a painful choice. The pain of the patient is beside the point in their universe. Sadly, this is just another example of the Clinton-Bush era's aggressive push by religious entities to obtain "rights" to act without consideration of who is harmed in the process.

George Will was correct that the Bush Administration's decision to release TARP funds exhibited a dangerous aggrandizement of its power – and many other examples can be given, conscience privileges among them. In truth, eight years of executive overreaching in every arena has led to an overall weakening of the Constitution's foundation.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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