Beyond Politics: A Social and Cultural History of Federal Healthcare Conscience Protections

Abstract

The day before the inauguration of his Democratic successor, President George W. Bush oversaw the promulgation of an administrative rule that extended “sweeping” new conscience protections to healthcare providers, one which would allow them to refuse to participate in or refuse to refer for medical services to which they morally or religiously object. Enacted in a funding regulation through the Department of Health and Human Services (“HHS”), the rule – commonly called the Provider Conscience Regulation (“Regulation”) – purported to clarify and implement existing federal law; by its own terms; however, the Regulation pushed the boundaries of those laws, granting protections to a broader class of individuals and across a wider range of services. In so doing, the Regulation sought to resolve an ongoing tension between patient access and provider autonomy, yet it served to reignite a long-standing debate over the proper role of morals in medicine.