Not about access
The conscience vs. choice battle is at an uneasy stalemate at the moment. Congressional statutes hold professional organizations and medical schools at bay. Some states (like Kansas) push conscience protections to extremes, while others (like Washington) push them aside. The pressure on pro-life professionals is real, but voices of moderation are also in play.
"No one on the pro-choice side is saying they want to eliminate anyone with religious objections," said Luke Goodrich at the Becket Fund for Religious Liberty, which defended the Seattle pharmacist against the Washington emergency contraception rules. "They say they are trying to ensure access to health care, abortion and emergency contraception. But when you scratch beneath the surface, you see an attempt to suppress conscientious objection even when it doesn't inhibit access."
Goodrich points to his client in Washington, noting that over 30 pharmacies within a five mile radius dispensed the disputed drug, and that his client would even call ahead to make sure they had it in stock.
"This isn't about access," Goodrich concludes. The goal, he said, is to "ensure that no one would ever encounter a health care professional who disagrees with the treatment they are seeking on religious or moral grounds."
But Adam Sonfield at the pro-choice Guttmacher Institute seems willing to compromise, supporting the right of conscientious objectors to not directly engage in abortion. "(But) there are some lines you can't cross," Sonfield added. "You can't deny information. You can't deny care in an emergency, and if you refuse care, you must make sure the patient isn't abandoned."
"We have seen a lot of laws that try to push these limits," Sonfield said. "For example, some would allow a doctor to refuse to tell a woman of a problem on a sonogram because she might turn around and have an abortion."
Striking a balance
To the degree that abortion is legal, the pro-life side faces compromise on information and referrals — just as the pro-choice side is required to compromise on refusals.
Gallup's polling on abortion has been remarkably consistent for nearly 30 years. Current polls show 47 percent of Americans consider themselves "pro-life" and a matching 47 percent "pro-choice." Only 26 percent favor legalizing abortion under any circumstances, while just 20 percent oppose legalization in all circumstances. Half (51 percent) would legalize abortion only in certain circumstances.
Given such divisions, the search continues for a sustainable solution that somehow smooths the jarring chasm between the conscientious objector and the patient. An obvious answer is a facilitated referral like that offered by the Seattle pharmacy. But many pro-life health care providers balk at actively referring for abortion, and the controversial 2008 HHS rules were largely a response to calls for mandatory referrals. For many, running roughshod over this concern would undermine conscience protections.
Voices on both sides agree that the need for referrals could be reduced through broad prior notice about a provider's philosophy. In the case of pharmacies or OB/GYNs, this would allow most patients to align themselves philosophically in advance of need or to have backup plans in mind.
One ideal articulated by the American Pharmarcists Association (APhA) is that the objector "step away, not in the way." At a minimum, this means a scrupulously avoiding lecturing the patient. But some doubt whether any face-to-face refusal can be frictionless.
APhA also supports establishing systems that would protect a professional's right to conscientious refusal while ensuring the patient's right to obtain legally prescribed treatments. The best-case scenario, APhA holds, is "seamless to the patient, and the patient is not aware that the pharmacist is stepping away from the situation."
Such systems may be easier for nurses, who are embedded in institutions, than for pharmacists or doctors, who often stand at the front lines. Cathy DeCarlo thought she had struck such a seamless balance for five years at Mt. Sinai before she was blindsided on that still unexplained day in 2009.
So equilibrium remains elusive. If Goodrich is right that the real objective in some quarters is not to smooth access but to remove dissent altogether, then advocates for conscience may have a long way to go.
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