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In my role as a Senior Fellow in Human Rights and Bioethics at the Discovery Institute, I sent a formal comment to the Department of Health and Human Services opposing its intent to revoke the Bush Conscience clause. Instead of revoking it, I urge that it be revised to prevent it from being relied on by physicians to impose futile care theory or other form of discriminatory refusal of care against the elderly, people with disabilities and the dying. I then suggested principles to follow to construct a conscience clause that is sufficiently nuanced and limited in scope to protect the rights of health care workers and prevent discrimination against patients. From my comment:

In revising the rule, I urge the following principles to be embodied into an amended Conscience Clause:

— It should protect medical professionals against being discriminated in their employment because they refuse to perform—or be complicit in, as in referral requirements—medical procedures that are intended to terminate the life of a human organism or human being, whether an embryo, fetus, or born member of the species. To put it succinctly, no medical professional should be forced to take, or participate in the taking, of a human life.

—It should distinguish generally between elective procedures—e.g., interventions not immediately necessary to save the patient’s life or prevent serious physical harm—and non-elective procedures. Refusing elective procedures should be granted greater protection then non elective procedures.

—To prevent conscience clauses from becoming safe harbors for discrimination, the requested procedure should generally be what violates the conscience of the health-care professional, not bias against the patient. In this way, for example, an oncologist would not be able to refuse to treat a lung-cancer patient because the patient smoked, nor could a pharmacist refuse to fill a prescription for drugs to fight AIDS because she believes the patient is gay.

—Finally, those covered by conscience clauses should be bona fide health-care professionals such as nurses, pharmacists, and physicians...
I conclude with a call to bridge the bitter divisions that are rending our society.
President Obama has made a point of declaring that his administration will seek to enact policies that bridge the cultural divides that rend the American culture. Revising the Bush Conscience Clause would accomplish this worthy goal by respecting the morality and values of medical professionals who, in good faith, disagree with the current course of law and medical ethics, while not binding professionals of different views from following the same course.
This last point, I think, is quite telling about President Obama’s pledge to bridge our differences. But this revocation, coupled with his actions revoking the Bush “alternatives” stem cell funding rule, demonstrate to me that he intends to divide and conquer, not compromise and heal. If the HHS merely revokes the Bush conscience clause, my suspicions will be more than confirmed.

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