A recent wave of state and federal legislation would expand the ability of health care providers, institutions and insurers to refuse to participate in sexual and reproductive health services by claiming a moral or religious objection, according to "New Refusal Clauses Shatter Balance Between Provider ‘Conscience,’ Patient Needs," by Adam Sonfield. Many of these new refusal clauses would force governments, communities and private organizations to defer to the conscience assertions of a wide range of health care "participants" at the expense of patients’ ability to access critical health information and services.
Refusal clauses were initially enacted in the wake of the Supreme Court’s Roe v. Wade decision in 1973, allowing doctors and other direct providers of health care to refuse to perform abortions. Attempts have since been made, however, to apply them to a growing range of health care activities and health care professionals. For example, refusal clause proposals now frequently cover technologies and medical practices such as in-vitro fertilization and research involving human embryos or embryonic stem cells, and end-of-life practices such as adherence to living wills. At the same time, the right to refuse is sometimes being asserted for even the most indirect participants in health care services, such as ambulance drivers and hospital clerical workers. Most recently, pharmacists have emerged at the forefront of debates on this issue, arguing for the right to refuse to fill prescriptions, not only for emergency contraceptives, but for regular oral contraceptive pills as well.
At both the federal and state levels, the refusal clause debate is now threatening to extend refusal rights to virtually anyone performing any function related to the provision of health information or services, for any reason. To date, a handful of states have enacted such broad refusal policies, and a similarly broad measure is pending in Congress. For example, a Mississippi law enacted earlier this year allows any employee of any hospital, clinic, nursing home, pharmacy or medical school to refuse to participate in counseling, diagnosis, research or administering of any type of drug, device, surgery, care or treatment by asserting an objection on moral, ethical or religious grounds. The Federal measure, if enacted, would forbid state or local governments from requiring any individual or institution to perform, provide, refer for or pay for an abortion under any circumstances. This would limit states’ ability to ensure abortion access for low-income women in cases of life endangerment, rape and incest, as required under Medicaid.
Sonfield points out that under such sweeping legislation, patients will be left not only without care from a particular provider, but without the referral information they need to seek care elsewhere. Moreover, under the broader refusal clauses, policymakers, communities and advocates would have no way of preserving access to reproductive health services in the face of mergers between religious and secular hospitals. Sonfield suggests that future attempts to address this issue should follow the example of the handful of states (including California, Hawaii, Missouri and New York) that in the context of state contraceptive insurance coverage mandates have sought to balance providers’ right to refuse on religious or moral grounds with patients’ right to access a full range of services, by enacting mechanisms designed to ensure patients’ access to care.
For state-by-state information on refusal clauses, click here.