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1 Abortion: Does Doctor Moral Objection Matter? Helms School of Government, Liberty University GOVT 230: Public Policy Research and Writing

2 Executive Summary Abortion has been a point of emphasis in policy for a long time, starting before Roe v. Wade. One major concern with abortion is the doctors’ rights to conscientious objection to providing the service because of a religious or moral belief. To address this, proposed policy will seek to find a balance between the rights of patients to access these services and the rights of doctors to have their moral and religious beliefs that must be upheld by the employer, mainly because of the Constitutional right to religious freedom. To accomplish this, The World Health Organization’s proposition was for doctors to explicitly state whether they have an objection to providing reproductive and abortion services prior to being employed, so doctors can be properly trained and placed in hospitals around the country equally in order to allow doctors to have the comfort and right to refuse performing services they deem to be against their religious or moral beliefs, but giving patients proper and quick access to services they are searching for. Problem Articulation Abortion is a moral and policy debate that has been ongoing since the 1900’s. Roe v. Wade was the court ruling that made abortion legal in the United States, and the abortion conversation has been constantly growing larger ever since. With abortion being legal in some states after the overturning of Roe v. Wade, one issue arises, should doctors be forced to administer abortion services if they morally object? As people all over the world hold different opinions regarding the rights that doctors must conscientiously object to providing abortion services, the rights that women should have to get an abortion, the rights that the unborn child has, and when life is truly defined to start for the child. If the child was defined as alive and given rights at conception, doctors would not have to decide if they are going to perform the

3 service, as they would face a major penalty for murder as the child would have its own right to life. Effects of Refusal Doctors that refuse abortion services have done so for numerous reasons, such as religion, as their conscious is morally affected, but the women requesting these services, and most importantly the unborn child are also affected, as they will be forced to seek services elsewhere. Though the woman that is carrying the baby is heavily affected by anything related to the abortion and carrying of her child, the unborn child whose life is at stake will undoubtedly be the most affected party, as the child’s life is left up to the decision of the doctor and its mother. Authors Rodger and Blackshaw (2021) state that it is valuable for conscientious objection to exist, but if almost all healthcare professionals object, the women seeking these services would be affected long-term, leaving them no way to access these services (p. 155). The issue of abortion has been ongoing since even before Roe v. Wade in 1973 and has continued to become an especially sensitive subject. During 2021, the US underwent “the most restrictive year in US history for abortion since Roe was decided.” (Gale, 2022). Even after Roe v. Wade became overturned, the debate continues. Abortion: State or National Government Issue? Abortion has remained an issue of the national government, until after the overturning of Roe v. Wade , the authority has been turned over to the states to decide what the law will be for states individually (Houseman, 2022). Doctors in states where abortion remains legal must decide if they will continue to perform services despite moral objections, though they should not be forced to perform services against a legitimate moral objection. If a doctor is ever forced to perform a procedure that violates their religious freedom, then their crucial right to freedom of

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4 religion is being violated by their employer, which will end up being a major problem for whoever is violating the religious rights of the doctor, given by the national government, but also heavily enforced by all state governments. Legislative History Roe v. Wade, decided by the Supreme Court, was the first type of legislation regarding abortion, making it legal in the United States. The first legislation relating to conscientious objection, specifically when referring to religious and moral beliefs, was the Church Amendment of 1973 (Harris, 2013). The Church Amendment of 1973, an amendment passed through the Senate gave the right to healthcare professionals to refuse to give services that require them to go against their religious or moral beliefs. The Supreme Court became involved again during the Wood v. University of Utah Medical Center court case, reiterating the informed consent clause that gave healthcare workers the ability to refrain from procedures against their morality, but also required that these healthcare workers not provide the patients with false information to persuade them away from having an abortion (Roper, 2004). The Supreme Court, being the main governing body involved in conscientious objection and abortion laws, operates under the judicial branch, interpreting the law and using their interpretations for certain cases. The Supreme Court’s biggest ruling was Roe v. Wade, January 22, 1973. Another governing body that continues to be involved in the debate is the Senate, operating under the Legislative Branch, with their primary focus being to introduce policies of legislation to become law. The Senate’s Church Amendment of 1973 did pass 92-1, but also led to the Public Health Service Act of 1996, stopping the national government from, “discriminating against any health care entity on the basis that the entity: refuses to undergo training in the performance of induced abortions.” (Department of Health and Human Services,

5 2023). George W. Bush did involve the executive branch with his issuing of the Provider Conscience Regulation on December 18, 2008, allowing healthcare professionals to object to involvement in medicinal services that they do not agree with, or that they think is morally wrong (Parr, 2009). George W. Bush enacted this regulation the day before President Barack Obama was inaugurated, hoping to “resolve ongoing tension between patient access and provider autonomy” (Parr, 2009), and Parr (2009) mentions that it did restart the debate of healthcare workers and how their morals should be present in their work. Existing Legislation Concerning Conscientious Objection Currently, Delaware, Georgia, Kansas, New York, Oregon, Pennsylvania, Rhode Island, South Carolina, and South Dakota have a policy or law explicitly written down relating to conscientious objection being allowed in the workplace. Out of all the previously listed states, Rhode Island is the only one that requires a written statement from the employee to the employer stating their conscientious objection to certain services as abortion. Kansas, South Dakota, and North Carolina have, “statutes that explicitly apply to abortion and/or emergency contraceptives.” (Achey & Robertson, 2022). The Religious Freedom Restoration Act restricted the government from inhibiting any individual’s freedom of religion. According to Eagen- Torkko (2020), patients access to abortion services or any service that may conflict with a doctor’s religious values, is up to employers to decide on what will do. Abortion is an issue that continues to cause new policy and legislation to be considered and adopted, as it has in the past. Doctors hold the right to conscientiously object to abortion services across the nation. Certain states require different actions to be taken prior to an employee exercising this right, as in Rhode Island, where a written statement is required before allowing the physician to exercise the use of conscientious objection. As new legislation has

6 been implemented in the past, and due to the nature of the debate regarding conscientious objection throughout the United States, policy makers must examine the past legislation regarding abortion and the rights that all parties involved have, and explore new legislative ideas that healthcare professionals may have to adapt to in the future, despite the current legislation regarding doctor, midwife, and pharmacist rights to refuse services they deem to be against their religious or moral beliefs. Policy Alternatives to Abortion and Conscientious Objection Should doctors have the right to conscientious objection in response to providing abortion services? Because the question cannot be answered with a simple “yes” or “no”, there are numerous differing opinions regarding the extent to which conscientious objection should be allowed. For those not in agreement with the current state of conscientious objection policy, there have also been multiple proposed policy alternatives that are worth exploring and considering. After the 1970’s Roe v. Wade ruling, there were multiple laws, acts, and policies put into place that dealt with the more specific aspects of abortion, as conscientious objection. The Church Amendment of 1973 and Religious Freedom Restoration Act were both pieces of legislation that extended rights to healthcare workers regarding their personal religious and moral beliefs, allowing them to refuse service to patients requesting certain abortion or reproductive services. Multiple states have implemented conscience clauses that protect their workers from being forced to perform what they believe to be unethical services. Rhode Island is the one state that requires a written statement from the employee to allow for conscientious objection rights to be exercised by that employee. Though all this current legislation is in place, there are numerous policy makers that have put forth alternative to be considered, to protect both the patient and healthcare workers and their rights.

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7 Many organizations, such as the Department of Health and Human Services, have put certain policies into effect regarding conscientious objection. Though these policies are in place, there are several proposed policies that must not be overlooked. Each must be considered when determining what policy to put into place. Proposed Rule The “Proposed Rule”, also titled, “Safeguarding the Rights of Conscience as Protected by Federal Statutes”, is in response to the 2019 Final Rule and the 2011 Final Rule pertaining to conscientious objection in healthcare. The proposed policy states that it will, “retain certain provisions from the 2019 Final Rule with modifications while rescinding others, and generally reinstating 2011 framework that has been in effect for some time.” (Federal Reserve, 2023). Supporters believe that this proposition will allow for access to services without the possibility of discrimination against the individuals seeking the services, but also worried a majority of people, concerned that patients would be either denied or limited access to this service in exchange for the Proposed Rule, as it would give more conscience protections, but could potentially become a trade-off, with more healthcare workers gaining more conscience protections in the workplace, but patients getting less access to reproductive services. The first part that the Proposed Rule proposes to keep from the 2019 Final Rule is to retain conscience protections that are provided by numerous government programs, such as Medicare and Medicaid and the Affordable Health Care Act. By keeping this portion of the 2019 Final Rule, the article states that the rights protected by these programs will become more known to the public, and it will also help in designating where to complain about an infringement upon these rights (Federal Reserve, 2023).

8 Secondly, the 2019 and 2011 Final Rule’s requirements for investigations would be kept in place, giving the Office of Civil Rights the right to investigate issues and complaints of discrimination against conscientious rights that these healthcare workers retain. The Office of Civil Rights will also, “seek voluntary resolution of violations” (Federal Reserve, 2023), to resolve any violation of rights that an employee or patient may experience. According to author Katie Keith (2019), this proposition would let the Office of civil Rights fully investigate, come to conclusions, and punish those responsible for committing violations against the conscience rules. The OCR would legally be allowed to withhold money from these funded entities for violation of rights according to these new rules. (Keith, 2019). Lastly, the 2019 Final Rule contained a voluntary notice, advising the patients about certain rights they have, how to file with the Office of Civil Rights, and how these patients may seek service elsewhere. This proposed policy is in attempt to balance the rights of healthcare professionals and their patients, as they both have their respective rights that ought to be protected (Federal Reserve, 2023). Overall, the Proposed Rule attempts to retain the three aspects listed above, but also slightly change them. World Health Organization Policy Recommendation The World Health Organization, attempting to find balance between religious objections and patients seeking to be provided with healthcare, came to a proposition that looks to treat both parties fairly. The main proposed solution to the abortion-seekers that are unable to be serviced because of objections is to equally distribute doctors and healthcare professionals across the nation that do not object to providing these abortion and reproductive services, so that one area of the country is not subject to a shortage in these services, but while not taking away the rights of healthcare workers and their beliefs (World Health Organization, 2022). Though this could be

9 a viable solution to the problem, it would mean that employees would have much less say in what area of the country they work in, leaving them their rights to objection but trading that for job location availability. The main advantage to this solution is healthcare workers will be able to comfortably refrain from participating in these services, but the patients knowing that a professional in their area will be able to assist them. Abortion seekers look to have their rights and needs met, while being able to support this solution that does allow doctors to refuse them, because the patients know they will be able to receive the service. Proposed Solutions After considering numerous proposals, one policy seems to allow for the greatest balanced solution that will allow both doctors and patients alike to retain their rights, without fear of punishment or discrimination. The proposed policy put forth by the World Health Organization, with a few changes, should be able to adequately address the concerns of both parties involved in the debate of whether doctors should legally be allowed to conscientiously object to providing abortion services because of religious or moral beliefs. The World Health Organization’s proposition is for healthcare professionals to get specific training before entering the workforce, depending on whether they morally object to performing abortive and reproductive services, which can be enforced by the federal government. After the professionals have been distinguished, they must then be equally distributed across the country, to not leave any one area with no supply of doctors to perform certain procedures, but to also allow doctors a stress-free work environment, as they know they will not be needed or forced to perform said services. According to Michael Cook (2022), The World Health Organization did not just simply defend doctors’ choice to exercise conscientious objection rights in the workplace, but they described the right to this moral objection, “indefensible” (Cook, 2022). One piece of the

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10 proposition made by the World Health Organization that could be improved upon would be to add in that patients will immediately be told upon arrival that their doctor is unwilling to provide certain reproductive services, and that the patient should inquire about other doctors if they seek these services. One of the main concerns regarding conscientious objection is that women who need these procedures because their life is in danger, and as stated by Christian Fiala and Joyce Arthur, “the refusal to treat creates harm and barriers for patients receiving reproductive health care.” (Fiala & Arthur, 2017). The World Health Organization’s proposal will effectively combat this concern, as having doctors’ moral obligations known before being placed in the workforce will be a great advantage, allowing there to be an adequate number of doctors in every hospital across the country, so no woman is left on her own. One other concern, voiced by Steve Clarke of the Journal of Medical Ethics, is that healthcare workers will begin to believe that they can abuse the rights given to them through conscientious objection, and start refusing other services by simply stating that they have some objection to a certain service, and no one is allowed to stop it (Clarke, 2017). To combat this, stricter stipulations must be put on what constitutes a conscientious objection. One option that is used in some parts of the world that require military service by their citizens is to put objectors before a tribunal, as they will decide if the reason for objecting is satisfactory. If used in healthcare, some legitimate objections would be refused, but it would be more successful in requiring more accountability from the objectors. A major disadvantage in implementing this portion of the proposal would be the turning away certain individuals who have certain concerns about whatever they must do, but because the third-party system deems their reason inadequate, they are denied moral exemption.

11 As freedom of religion is one right given in the United States, no individual’s religious beliefs and convictions should be the reason they are denied a job or are forced to leave a job. A major advantage will be doctors comfortably being able to work in an environment they know they will not be forced to perform any procedure they deem to be against their religious or moral beliefs. Doctors’ ability to morally object to abortion procedures is a necessity for keeping religious freedom alive in this country. Measures should be taken to not take rights away from women seeking abortions, but to not allow for doctors to be taken advantage of also. By spreading doctors out based on their beliefs and moral obligations, notifying patients that the doctor servicing them is either an objector or non-objector, and providing a third-party accountability system will allow doctors to retain their right given to them by the United States Constitution, the right to religious freedom. The rights given to Americans in the Constitution are of the utmost importance to keep and not violate. As a Christian, it is crucial to address the main point of the problem, how abortion is a sin. Christians should not partake in something that God abhors so deeply, the taking of innocent blood. With this proposed solution, it will allow Christians to abstain from taking part in a process that is so evidently against the fundamental beliefs of their faith, but it will also do so in a way that does not discriminate towards those of other beliefs, as God does not want Christians to be taken up with things in the world, He requires Christians to be separate, but also to show love to everyone, especially those not of the Christian faith. By simply allowing patients to have the readily available doctor that does not have a problem with performing an abortion procedure, this will allow Christian doctors to kindly let their patients know that since they have a moral obligation because of their faith they will need to have a different doctor come in right away and help them, allowing the patient to immediately receive care they are seeking, and for the

12 Christian to not turn away someone seeking something that they have a right to, since they are simply turning them over to someone that does not have a problem with providing abortive and reproductive procedures. One opportunity may arise where a patient asks the doctor why they object, and the doctor may have the chance to share the Gospel with an unbeliever, which is a major part of what being a Christian is about. If nothing else, this proposed solution allows Christians to have the freedom to not go against the fundamental belief that life is created and cherished by God, but not showing hatred or distaste for people choosing to get this procedure done by adequately placing trained doctors in every hospital, letting patients know someone capable will take care of their needs, effectively attempting to rid discrimination out of conscientious objection. The Christian worldview requires Christians to love people of this world, show them how God loves them, but they are not to conjoin themselves with the world to accomplish this. Because of the severity of this issue, it must not be overlooked or passed over by policymakers. Continuous thought and deliberation between policymakers and the people that this policy will affect is crucial to implementing this proposed solution properly. By providing a policy that will allow a compromise between both the patient requesting services and the doctor that feels it is his moral or religious duty to not perform said services.

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13 References Achey, T. S. & Robertson, A. T. (2022). Conscientious Objection: A Review of State Pharmacy Laws and Regulations. Hospital Pharmacy 2022, 57(2): 268-272. https://web.s.ebscohost.com/ehost/pdfviewer/pdfviewer?vid=0&sid=dc3fd1d8-a87b-45db- ad09-c36d621491e6%40redis Arthur, J. H., & Fiala, C. (2017, July 23). There is no defence for 'conscientious objection' in Reproductive Health Care . European Journal of Obstetrics & Gynecology and Reproductive Biology. Retrieved February 11, 2023, from https://www.sciencedirect.com/science/article/pii/S0301211517303573 Blackshaw, B. P., & Rodger, D. (2020, November 19). Quotas: Enabling conscientious objection to coexist with abortion access - health care analysis . SpringerLink. Retrieved February 15, 2023, from https://link.springer.com/article/10.1007/s10728-020-00419-5 Clarke, S. (2017, April 1). Conscientious objection in healthcare, referral, and the military analogy . Journal of Medical Ethics. Retrieved February 11, 2023, from https://jme.bmj.com/content/43/4/218 Cook, M. (2022, August 15). World Medical Association protects conscientious objection by rejecting mandatory referral . BioEdge. Retrieved February 11, 2023, from https://bioedge.org/bioethics-d75/conscientious-objection/world-medical-association- rejects-mandatory-referral-and-protects-conscientious-objection/ Department of Health and Human Services (2023). Conscience and Religious Nondiscrimination . https://www.hhs.gov/conscience/conscience-protections/index.html

14 Eagen-Torkko, M. and Levi, A.J. (2020), The Ethical Justification for Conscience Clauses in Nurse-Midwifery Practice: Context, Power, and a Changing Landscape Journal of Midwifery & Women's Health, 65: 759-766. https://doi.org/10.1111/jmwh.13170 Federal Register. (2023, January 5). Safeguarding the Rights of conscience as Protected by Federal Statutes. https://www.federalregister.gov/documents/2023/01/05/2022-28505/safeguarding-the- rights-of-conscience-as-protected-by-federal-statutes#footnote-13-p825 Harris, L. H. (2013, January). Recognizing Conscience in Abortion Provision. https://oce.ovid.com/article/00006254-201301000-00011/HTML Housman, P. (2022, June 29). Roe v Wade overturned: What it means, what's next . American University. Retrieved January 25, 2023, from https://www.american.edu/cas/news/roe-v- wade-overturned-what-it-means-whats-next.cfm Keith, K. (2019). New York Court Vacates Conscience Rule. Health Affairs https://www.healthaffairs.org/do/10.1377/forefront.20191107.342050 Parr, K. A. (2009). Beyond Politics: A Social and Cultural History of Federal Healthcare Conscience Protections. American Journal of Law and Medicine, 35(4), 620-46. https://go.openathens.net/redirector/liberty.edu?url=https://www.proquest.com/scholarly- journals/beyond-politics-social-cultural-history-federal/docview/749650017/se-2 Rodger, D., & Blackshaw, B. P. (2021). Quotas: Enabling Conscientious Objection to Coexist with Abortion Access. Health Care Analysis : HCA, 29(2), 154-169. https://doi.org/10.1007/s10728-020-00419-5

15 Roper, G. E. (2004). An Open Question in Utah's Open Courts Jurisprudence: The Utah Wrongful Life Act and Wood v. University of Utah Medical Center. Brigham Young University Law Review, 2004(2), 893-934. https://go.openathens.net/redirector/liberty.edu?url=https://www.proquest.com/scholarly- journals/open-question-utahs-courts-jurisprudence-utah/docview/194351416/se-2 Scholarly articles on abortion: History, legislation & activism - gale . Gale.com. (2022). Retrieved January 25, 2023, from https://www.gale.com/open-access/abortion World Health Organization. (2022, January 11). Law & policy recommendation 22: Conscientious objection (3.3.9) - abortion care guideline . Abortion care guideline - Consolidated guidelines for clinical care, service delivery, and law and policy. Retrieved February 7, 2023, from https://srhr.org/abortioncare/chapter-3/pre-abortion-3-3/law- policy-recommendation-22-conscientious-objection-3-3-9/

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