Ohio has granted medical professionals the right to refuse to perform procedures that violate their personal religious or moral beliefs.
This new provision, known as a Right of Conscious Refusal (RoCR), is buried within the state’s latest budget proposal and was signed into law on July 1 by Gov. Mike DeWine.
LBGTQ+ advocates have already come out against the law, arguing that it discriminates and would allow medical professionals to refuse to treat individuals they do not like.
Alphonso David, president of the Human Rights Campaign, argued, “Because of [Gov. DeWine’s] decision not to line-item veto the discriminatory language adding a medical refusal provision to the state’s budget, medical practitioners in Ohio can deny care or coverage for basic, medically necessary and potentially life-saving care to LGBTQ people simply because of who they are.”
This is similar to the responses after Arkansas Gov. Asa Hutchinson signed Senate Bill 289, “The Medical Ethics and Diversity Act,” which goes into effect on July 28 and offers a similar right to refusal.
Medical RoCR policies date back to Roe v Wade (1973).
Shortly after the landmark Supreme Court ruling, Congress enacted the Church Amendment, allowing federally funded private hospitals to refuse to provide abortion or sterilization based on religious and moral beliefs.
The next several years saw 47 states and the District of Columbia pass abortion and sterilization RoCR laws.
Similar federal laws have been enacted like the Section 245 of the Public Health Service Act of 1996, The Weldon Amendment of 2005 and even the Affordable Care Act.
Unlike the recent Ohio and Arkansas laws, however, all of these are linked to abortion and sterilization procedures.
Efforts to expand RoCR policies began in 2008 when President George W. Bush enacted the Right of Conscience Rule. This allowed health care workers to refuse to provide services based on personal beliefs and denied federal funding to facilities that don’t allow practitioners this right.
President Barack Obama subsequently rescinded it in 2011.
President Donald J. Trump instructed the Department of Health and Human Services (HHS) to protect the religious rights of health care providers and religious institutions, and a new rule was announced in May 2019.
The U.S. district Court of Southern District of New York negated the rule in a November 2020 ruling, arguing that the HHS did not have authority to change federal laws such as The Emergency Medical Treatment and Labor Act (EMTALA) or Title VII.
RoCR laws require us to reflect upon private organizations that fulfill needed public services and sometimes use public funds.
There are two competing issues: access to services and respect for personal beliefs.
At first glance, this may seem like a simple debate, but the further we look, the more complicated it becomes.
Regarding access to services, many groups have pointed out that RoCR laws might interrupt services and emergency care to at-risk patients. This criticism needs to be taken seriously.
Some RoCR laws and policies require the providing of emergency services, like the Arkansas statute.
Legislation should clearly define the scope and limitations of the RoCR to ensure basic or emergency services are provided.
In like manner, Congress would be wise to strengthen EMTALA in order to respond to these and future state laws.
Faith-based hospitals make up almost 20% of all U.S. hospitals, and most of these are Catholic. In countless small communities, there is only one hospital; many times it is faith-based.
Faith-based hospitals are filling a gap and are needed to sustain the U.S. health care system. If such hospitals are forced to provide services that violate their belief systems, then they might change their offered services to avoid a conflict of conscience.
For example, to avoid being forced to provide abortions, a Catholic hospital might choose to scale back its labor and delivery department simply to avoid the conflict.
This would create a shortage of services in communities that rely primarily on faith-based hospitals for many medical services.
On the other hand, respect for personal beliefs needs to be maintained in therapeutic relationships.
Patients are unlikely to trust their provider unless they believe their provider will care for them in a nonjudgmental fashion that focuses upon the patient’s best interest.
In like manner, medical students who are faced with the possibility of providing services for which they have religious or moral objections might choose other specialties to avoid being required to perform them.
This could create a shortage of providers, especially in critical disciplines.
In short, support or opposition to RoCRs might create a catch-22 phenomenon for which there are no perfect solutions.
Therefore, our nation’s political leaders, as well as its moral and faith leaders, must avoid knee-jerk reactions and be willing to think calmly through the practical implication of these laws.
Hyperbolic statements presented within slippery-slope arguments about physicians being forced to aid patients in committing suicide or LBGTQ patients being thrown out of emergency rooms will not generate viable solutions.
Our health care system needs the continued support of faith-based providers, and the public needs to know that their health needs can and will be addressed without prejudice or discrimination.
Senior Staff Chaplain and Clinical Ethicist at the Baptist Health Medical Center in Little Rock, Arkansas.