Forcing Pro-life Doctors Out of Baby Business?

Should pro-life doctors and pharmacists be free to practice their profession according to the dictates of their consciences? Should a woman have the freedom to choose an obstetrician or gynecologist she trusts to provide care consistent with her beliefs?

Current federal law says yes. But many women may have that choice greatly restricted, and their doctors driven out of business, if a medical association is able to require that all doctors either perform abortions or make referrals for abortions.

In November 2007, the American College of Obstetrics and Gynecology (ACOG) announced that the ethical standards of the profession had changed. Its ethics committee stated that an ob/gyn who is unwilling to perform an abortion has an ethical duty to refer the patient to someone who will perform it. If the physician is unable to refer the patient in a timely manner, he would be required to perform the abortion himself.

This decision threatens the livelihood of pro-life doctors. Every ob/gyn who works in a hospital or clinic needs not only a license, but also certification that his skills are up to date and that he is aware of recent developments in the field. To be certified, he must follow the ethical standards of the profession, so under the new ethics policy a pro-life doctor risks losing his certification if his pro-life convictions don't allow him to perform or cooperate in an abortion. And if he loses his certification, a hospital or clinic won't let him deliver babies there.

The American Association of Pro-Life Obstetricians and Gynecologists has labeled the decision “a raw power play to cripple, and ultimately eliminate from practice, those doctors who hold a conscience conviction on the sanctity of human life.” Besides forcing current ob/gyns out of the profession, the policy would make any bright young pro-life student think twice about going to medical school for obstetrics or gynecology.

Federal law protects doctors from discrimination for being pro-life. Any hospital or clinic that receives government funds (and most do) must allow a qualified pro-life doctor or medical student to practice his profession. So any hospital or clinic that rejects a doctor who lacks board certification could find itself in violation of federal law, and unwittingly be at risk of losing its government funding.

In response, Health and Human Services (HHS) Secretary Mike Leavitt sent the American Board of Obstetrics and Gynecology, the professional agency that provides continuing certification for doctors, a letter strongly urging the agency not to base its licensing requirements on the ACOG ethics opinion. The Board was evasive: It claimed that whether a physician is pro-life has no bearing on his certification, yet it did not explicitly reject the ethics opinion. Nor did it rule out taking action against “unethical” pro-life doctors in the future. ACOG announced simply that it would review the ethics committee opinion. In June, Leavitt sent a second letter requesting more decisive action. But as things stand, a pro-life ob/gyn still risks losing his certification.

Even if the Board and the College continue to evade the communications from HHS, Leavitt could act to help the doctors. He should send a letter to all federally funded hospitals and clinics that employ ob/gyns, explaining federal law and how the new certification policy conflicts with it.

To further clarify current law protections, HHS is reportedly reviewing a draft regulation to ensure that federally funded hospitals and clinics protect the conscience rights of health care professionals. Current law protects doctors, nurses, pharmacists and other health workers against being forced to violate their moral convictions.

Developments in the field -- such as the "morning-after" pill -- have made once abstract distinctions about the moment life begins immediately relevant. Many people believe that life begins when an egg is fertilized, and that the “morning-after” pill constitutes abortion. Other people believe that conception occurs only when a fertilized egg implants in the uterus, so that the “morning-after” pill is simply “emergency contraception,” because it prevents “conception” as they define it. The HHS regulation deems each view reasonable, and protects both views. Rather than imposing a bureaucratic definition, it defers the matter to the conscience of the health care provider -- as federal law has to date.

Federal law has upheld and should continue to uphold the conscience rights of medical professionals. Indeed, it was designed to combat the very kind of discrimination the ACOG ethics opinion recommends. Bureaucracy shouldn’t get in the way of qualified professionals being allowed to practice conscientiously and patients being able to choose a health care provider with similar convictions.

Daniel Patrick Moloney, Ph.D., is Senior Policy Analyst in the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation. Peter Reed, a senior at Patrick Henry College in Purcellville, Va., is a Heritage intern.