I would like to start by thanking Secretary Leavitt for being given the
opportunity to comment on the proposed regulation.

"I believe in an America that is officially neither Catholic, Protestant
nor Jewish --- where no public official either requests or accepts
instructions on public policy from the pope, the National Council of
Churches or any other ecclesiastical source --- where no religious body
seeks to impose its will directly or indirectly upon the general
populace or the public acts of its officials.\" - John F. Kennedy

**The Real Issue**

The protection of conscience rights of medical professionals, while
being important, pales in comparison to a directly related issue;
physicians and other health care professionals who choose, because of
their religious or moral beliefs, to deliberately withhold medically
relevant information from patients.

\"Fear can only prevail when the victims are ignorant of the facts.\" -
Thomas Jefferson

**Role of the Physician in American Society**

The American people value the essential services that physicians and
other health care professionals provide on a daily basis; they entrust
these professionals with their health and lives. The American people
regulate health care professionals, through their elected officials, to
ensure that they can trust qualified individuals who will provide them
with care.

The role of physicians and the type of service they provide has changed
in recent years. The paternalistic approach to medicine has for the most
part been replaced by one of informed consent. Informed consent is the
concept that a fully medically informed patient, with advice from their
physician, is the best way to optimize patient health care.

It is essential for the patient to provide open and free communications
to their physician in order to optimize informed consent. The concept of
doctor/patient confidentiality is an example of how society encourages
this open communication from patients to their physicians. The American
public, in turn, has a reasonable expectation of open communication from
their physicians i.e. that physicians will provide all medically
relevant information to their patient to ensure that they are fully
informed of their medical options.

Americans, as a whole, respect the concept of conscientious objection.
They are, with the exception of emergencies, comfortable with the fact
that health care professionals may choose to not perform procedures that
the professional finds religiously or morally offensive. The American
public would be shocked, however, to learn that when they are most
vulnerable, when they ask the question "What are my options?", that some
physicians would withhold medically relevant information they found to
be religiously or morally offensive. This betrayal of trust is so severe
that it could be construed as a physician attempting to force their
religious or moral beliefs onto their patient.

Unfortunately, this is not a hypothetical situation that is isolated to
just abortion. It is a real problem that is happening on a daily basis
in America, it covers many health issues, and it directly impacts the
level of care received by the public.

\"Now those who seek absolute power, even though they seek it to do what
they regard as good, are simply demanding the right to enforce their own
version of heaven on earth, and let me remind you they are the very ones
who always create the most hellish tyranny.\" - Barry Goldwater

**The New England Journal of Medicine Article titled Religion,
Conscience, and Controversial Clinical Practices FARR A CURLIN et al. /
New England Journal of Medicine v.356:593-600, n.6, 8feb2007**

<http://content.nejm.org/cgi/content/full/356/6/593>

The New England Journal of Medicine article was a study of how
physicians think about conscience objections and their obligations to
patients. There was a direct correlation between the religiosity of the
physician and their willingness to withhold medically relevant
information or refer patients for procedures they found to be morally or
religiously offensive. In other words, physicians who had the strongest
religious beliefs were the ones most likely to withhold information or
refuse referrals.

> **"If physicians\' ideas translate into their practices, then 14% of
> patients --- more than 40 million Americans --- may be cared for by
> physicians who do not believe they are obligated to disclose
> information about medically available treatments they consider
> objectionable. In addition, 29% of patients --- or nearly 100 million
> Americans --- may be cared for by physicians who do not believe they
> have an obligation to refer the patient to another provider for such
> treatments."**

**Implications of the Article**

The authors suggest that patients who want full disclosure should
research possible medical procedures and proactively question their
physicians about these issues. They also concede that patients will
probably not have ready access to information physicians\' religious
characteristics and moral convictions. These recommended actions place a
tremendous and virtually impossible burden on patients.

The issue of full medical disclosure becomes even more important when
one considers religious and faith based medical providers who do not
allow for the discussion of, or treatment for, legal health procedures
they find religiously or morally offensive.

[The chilling fact is that who you see, and where you are treated, could
have a direct impact on medical options that will be presented to
you.]{.underline} In essence, some health care professionals are acting
as censors to their patients or clients. They are the moral equivalent
to people who want to ban books or impose their religious beliefs on
others.

"It is our attitude toward free thought and free expression that will
determine our fate. There must be no limit on the range of temperate
discussion, no limits on thought. No subject must be taboo. No censor
must preside at our assemblies." - William O. Douglas

**HHS Proposed Regulation**

*The fourth conscience provision, 42 U.S.C. § 300a-7(d), provides that
"\[n\]o individual shall be required to perform or assist in the
performance of any part of a health service program or research activity
funded in whole or in part under a program administered by \[the
Department\] if his performance or assistance in the performance of such
part of such program or activity would be contrary to his religious
beliefs or moral convictions."*

*When applying the term "assist in the performance" to members of an
entity's workforce, the Department proposes to include participation [in
any activity with a reasonable connection]{.underline} to the
objectionable procedure, including referrals, training, [and other
arrangements]{.underline} for offending procedures.*

The proposed regulation, due the definitions, actually expands and
allows for the intentional withholding of information from patients.

The potential abuses of this regulation by professionals, with
enforcement from HHS, are simply astounding and almost limitless. The
proposed regulation creates the dangerous situation, for example, where
a state may lose federal funding for legislating and enforcing a full
medical disclosure law that is designed to protect patients. We also
have case history in this country where health care professionals
withhold information and place their own moral beliefs above the needs
of their patients; the Tuskegee experiment.

"The control of information is something the elite always does,
particularly in a despotic form of government. Information, knowledge,
is power. If you can control information, you can control people." --
Tom Clancy

**Providers Conscience Rights versus Quality of Care**

Individual Rights, including conscience objections, are not absolute.
Freedom of Speech, for example, does not allow an individual to shout
"fire" in a crowded theater. Conscience objections, in turn, cannot be
an excuse for deliberately withholding medically relevant information
from patients. In other words, while it may be noble for a firefighter
to spray water on a smoldering bush to prevent spread of a fire, it
cannot be at the expense of people trapped in a burning building twenty
feet away.

What has often been absent from this debate over providers\' rights has
been any serious discussion about providers\' responsibilities.
[Providers must impart full, accurate and unbiased information so
patients can make informed decisions about their health
care.]{.underline}

"Freedom of conscience does not confer a right to indiscriminate
recourse to conscientious objection. When an asserted freedom turns into
license or becomes an excuse for limiting the rights of others, the
State is obliged to protect, also by legal means, the inalienable rights
of its citizens against such abuses." -- Pope John Paul II

**The Recent Controversy**

It appears that the recent controversy about Conscience rights
originated with the publications of ACOG Committee Opinion Number 385 in
November 2007. The Committee Opinion seems to be a reasonable conscience
objection compromise given the implications of the New England of
Journal Medicine article. It allowed for conscience objections but
required a referral from a practitioner who objected to the medical
procedure.

Objections to the Committee Opinion appeared almost immediately after
publication. It appears that some practitioners consider a referral for
a procedure they find religiously or morally objectionable to be the
equivalent to conducting the procedure themselves. This position seems
extreme but must be taken into account when considering a possible
solution.

The essential question then becomes can a compromise be reached that
ensures patient access to medically relevant information and treatment
while still allowing for professional and religious and faith based
medical providers to conscientiously object or restrict procedures they
find religiously or morally offensive. This question should have been
the actual focus of HHS activities.

\"Religious beliefs worthy of respect are the product of free and
voluntary choice by the faithful.  Government must pursue a course of
complete neutrality toward religion.\"- Paul Stevens, U.S. Supreme Court
Justice

**Alternate Solution**

I am proposing the following solution to ensure patient access to
medically relevant information and treatments while still allowing for
professional and religious and faith based medical providers to
conscientiously object or restrict procedures they find religiously or
morally offensive:

A.  Entities who provide medical care and who are not individuals
    (clinics, hospitals etc.) would be required to make available to the
    general public any restrictions they may have to any and all legal
    medical procedures they find morally or religiously offensive. They
    would also have to provide this information to all patients being
    treated at their facility. These entities would not have to provide
    the offending services to patients except as dictated by specific
    state law or in the case of an emergency where the life or
    significant health of the patient may be in question.

B.  Those health care professionals with both (a) the authority to write
    prescriptions and (b) have the ability to obtain detailed patient
    histories, would operate under slightly different provisions. They
    would be required to create a document listing any restrictions they
    may have to any and all legal medical procedures and prescriptions
    they find morally or religiously offensive; they are not required to
    list any religious affiliations in this document and do not have to
    justify their positions. They have the option but are not required
    to provide this information to the public. They are required to
    provide this information to patients each time that patient is seen
    by the professional. Specific rules:

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1.  The patient has the right to review the disclosure sheet, and if
    they are uncomfortable with the restrictions may request the
    services of another professional within the entity. This process may
    be repeated if necessary.

2.  If the patient is seeking a specific procedure that is listed on the
    disclosure sheet then the professional is not obligated to provide
    any services to the patient.

3.  If the patient sees a professional about a problem that is not an
    emergency, and during the examination process the physician
    determines that a possible medical intervention includes a listed
    objectionable treatment, then the professional is required to fully
    inform the patient of all possible medical treatments, but is not
    required to perform the procedure. If the professional chooses to
    not perform the procedure then they must refer the patient to a
    professional who can treat the patient.

4.  If the patient sees a professional about a problem that is not an
    emergency, and during the examination process the physician
    determines that a possible medical intervention includes an
    objectionable treatment that is not listed, then the professional is
    required to fully inform the patient of all possible medical
    treatments, and is required to treat the patient.

5.  If the patient sees a professional about a problem that at first
    does not appear to be an emergency, and during the examination
    process the physician determines that it is an emergency then they
    must treat the patient regardless of any conscience objections.

> An emergency is defined as a situation where the where the life or
> significant health of the patient may be in question. Treatment is
> defined as performing the medical procedure. Treatment may include
> referrals to other professionals if the professional is not qualified
> to perform the procedure.

C.  All health care professionals would be covered under Federal and
    state laws like Title VII and other EEOC regulations regarding
    religious and moral workplace policies, accommodations and
    discrimination protections.

D.  Church Amendment, PHS Act and Weldon Amendment will have to be
    heavily modified to be in compliance with this proposal.

E.  Criminal penalties will have to apply to Health Care Professionals
    who intentionally withhold medical information from patients.

Provisions will have to be enacted to allow for therapeutic and other
appropriate situations where withholding of information is indicated.

The proposed solution has many advantages:

-   Respects the privacy rights of health care professionals.

-   Allows for reasonable conscience objections by professionals.

-   Eliminates the [absolute]{.underline} refusal rights granted to
    health care professionals in the Church Amendment, PHS Act and
    Weldon Amendment.

-   Allows entities (hospitals/clinics) to work with religious and moral
    workplace policies, accommodations and discrimination protections in
    an equitable and realistic manner.

-   Helps ensure patient access to full medical information.

-   Has an open market provision; patients can choose a physician or
    hospital/clinic with beliefs like him or her.

-   Eliminates censorship and the imposition of religious beliefs on
    others.

**Comments Regarding Language in the Leaked Draft, the Proposed
Regulation and Secretary Leavitt's Blog**

Excerpt from the Proposed Regulation

*There appears to be an attitude toward the health care professions that
health care professionals and institutions should be required to provide
or assist in the provision of medicine or procedures to which they
object, or else risk being subjected to discrimination. Reflecting this
attitude, in some instances the standards of professional organizations
have been used to define the exercise of conscience to be
unprofessional, forcing health care professionals to choose between
their capacity to practice in good standing and their right of
conscience.*

*Despite the fact that several conscience statutes protecting health
care entities from discrimination have been in existence for decades,
the Department is concerned that the public and many health care
providers are largely uninformed of the protections afforded to
individuals and institutions under these provisions. This lack of
knowledge within the health professions can be detrimental to conscience
and other rights, particularly for individuals and entities with moral
objections to abortion and other medical procedures.*

*In general, the Department is concerned that the development of an
environment in the health care field that is intolerant of individual
conscience, certain religious beliefs, ethnic and cultural traditions,
and moral convictions may discourage individuals from diverse
backgrounds from entering health care professions. Such developments
also promote the mistaken beliefs that rights of conscience and
self-determination extend to all persons, except health care providers.
Additionally, religious and faith-based organizations have a long
tradition of providing medical care in the United States, and they
continue to do so today -- some of these are among the largest providers
of health care in this nation. A trend that isolates and excludes some
among various religious, cultural, and/or ethnic groups from
participating in the delivery of health care is especially troublesome
when considering current and anticipated shortages of health care
professionals in many medical disciplines facing the country.*

All Americans, including health care professionals, are offered
religious or moral protections under federal law. The proposed
regulations will allow HHS to enforce special laws, [granted by the
public]{.underline} through their elected officials, that only protect
and apply to health care professionals and entities. The proposed
interpretation of these laws by HHS will shield those health care
professionals most likely to withhold medically relevant information
from their patients.

An anticipated shortage of health care providers is not an excuse for
staffing the medical industry with individuals who place their own
religious or moral beliefs above the medical needs of their patients.
Americans would be better served by professionals they can trust under
all circumstances.

\"We will be a better country when each religious group can trust its
members to obey the dictates of their own religious faith without
assistance from the legal structure of the country.\" - Margaret Mead

Excerpt from the Leaked Draft

*A recent New England Journal of Medicine (NEJM) study surveyed doctors'
attitudes toward treatments like euthanasia, abortion, and the issuance
of contraception to minors without parental consent. They found that,
although many physicians oppose the procedures (52% objected to abortion
for failed contraception, for example), 86% felt they were obligated to
present all options regardless of their own objections and 71% believed
physicians were obligated to assist objectionable procedures by
referring the patient to another clinician.1*

*A New York Times editorial commenting on the NEJM study criticized
physicians who refuse to present treatment options they deem immoral:2
"Any doctors who cannot talk to patients about legally permitted care
because it conflicts with their values should give up the practice of
medicine."3 Several letters to the editor concurred in The New York
Times's conclusion.4*

The NEJM article surveyed doctors' attitudes towards terminal sedation,
not euthanasia. Terminal sedation, as defined by the authors, is
"administering sedation that leads to unconsciousness in dying
patients." The goal of terminal sedation is to relieve excruciating pain
in the final hours of life if no other means of suppressing pain is
available.

HHS was obviously aware of the NEJM article (FEBRUARY 2007). Why did the
department focus only on conscience objections? What about the access
rights of the American people to medically relevant information?

"Great is truth, but still greater, from a practical point of view, is
silence about truth. By simply not mentioning certain
subjects\...totalitarian propagandists have influenced opinion much more
effectively than they could have by the most eloquent denunciations." --
Aldous Huxley

Excerpt from the Proposed Regulation

*This regulation does not limit patient access to health care, but
rather protects any individual health care provider or institution from
being compelled to participate in, or from being punished for refusal to
participate in, a service that, for example, violates their conscience.*

The proposed HHS regulation, due to the broad nature of the suggested
definitions, conflicts with many states laws regarding this subject.
States would have to comply with the proposed regulation or risk
funding; more individuals would thus be able to abuse these protections
which will in turn limit access to health care. To imply otherwise is
being disingenuous at best.

"Silence is the virtue of fools." -- Francis Bacon

Excerpt from the Proposed Regulation

*These proposed actions are consistent with the Administration's current
efforts to ensure that community and faith-based organizations are able
to participate in federal programs on a level playing field with other
organizations.*

The Administration's goal, while being admirable, is simply not possible
in the health care industry. A community or faith-based organization
that limits medical treatments based on religious or moral convictions
will never be able to compete on a level playing field with
organizations that offer full access to all legal medical procedures. No
amount of wishful thinking or rhetoric will change this mathematical
fact.

"When any government, or any church for that matter, undertakes to say
to its subjects, \"This you may not read, this you must not see, this
you are forbidden to know,\" the end result is tyranny and oppression,
no matter how holy the motives." -- Robert Heinlein

Excerpt from Secretary Leavitt's Blog

*As Secretary of Health and Human Services, I called on the organization
that oversees Ob-Gyn board certification to alter its guidelines to
assert that refusal to violate conscience will not be used to block
board certification. Their answer was dodgy and unsatisfying.*

There has been a large amount of correspondence concerning ACOG
Committee Opinion Number 385 from both sides of the issue. I chose to
decide for myself whether "their answer was dodgy and unsatisfying" so I
requested copies of all correspondence between HHS, ABOG and ACOG from
Secretary Leavitt. I also requested information regarding any HHS
positions regarding the NEJM article.

I have not received any requested information from HHS as of September
24, 2008. I am therefore unable to fully determine if "their answer was
dodgy and unsatisfying." It is worth noting that the organization that
oversees certification challenged Secretary Leavitt to produce one
instance of a physician losing their accreditation due to a conscience
objection.

It is also worth noting that "Protecting Rights of Conscience" was a
specific issue addressed in the 2008 GOP platform. The proposed
regulation was simply a straw man issue designed to "fire up" religious
right groups just prior to a presidential election.

"Knowledge is power." -- Francis Bacon

Excerpt from Secretary Leavitt's Blog

*Obviously, some disagree with the federal law and would have it
otherwise, so they have begun using the accreditation standards of
physician professional organizations to define the exercise of
conscience unprofessional and thereby make doctors choose between their
capacity to practice in good standing and their right of conscience. In
my view, that is simply unfair and a clear effort to subvert the law in
favor of their ideology.*

The leaked draft of the proposed regulations was clearly an attempt by
HHS to support religious right medical organizations in their attempt to
attack abortion, contraceptives and other acts they find morally
questionable. The fact that these organizations hailed and supported the
leaked draft, and eagerly anticipated court challenges of state laws, is
proof of the kind of political pandering to the religious right that has
made this administration infamous. [In my view, that is simply unfair
and a clear effort to subvert the law in favor of their
ideology.]{.underline}

\"There is no society in history that has ever suffered because its
population became too reasonable --- too reluctant to embrace dogma, too
demanding of evidence.\" - Sam Harris

Excerpt from Secretary Leavitt's Blog

*Not only are there clear provisions in three separate laws protecting
federally-funded health care providers\' right of conscience, but doing
otherwise undermines the most fundamental moral underpinning of freedom
of expression and action. I asked that regulations be drafted which
would enforce these long-standing laws protecting a medical
practitioner\'s conscience rights.*

*The Bush Administration has consistently supported the unborn. However,
the issue I asked to be addressed in this regulation is not abortion or
contraceptives, but the legal right medical practitioners have to
practice according to their conscience and patients should be able to
choose a doctor who has beliefs like his or hers.*

What about the rights of the public to be informed of all medically
relevant procedures? What about the rights of a patient to not have a
health care professional force their religious or moral beliefs on them?

"No man was ever endowed with a right without being at the same time
saddled with a responsibility." -- Gerald W. Johnson

Excerpt from Secretary Leavitt's Blog

*Is the fear here that so many doctors will refuse that it will somehow
make it difficult for a woman to get an abortion? That hasn't happened,
but what if it did? Wouldn't that be an important and legitimate social
statement?*

Is the fear here that so many doctors and faith based providers who (1)
refuse to provide information about all medically relevant procedures
and (2) who try to force their religious beliefs upon others, will lose
paying customers who do not share these beliefs and eventually be forced
to leave the practice of medicine. [That hasn't happened, but what if it
did]{.underline}? [Wouldn't that be an important and legitimate social
statement]{.underline}?

"People are difficult to govern because they have too much knowledge."
-- Lao-Tzu

Excerpt from Secretary Leavitt's Blog

*I want to reiterate. If the Department of Health and Human Services
issues a regulation on this matter, it will aim at one thing, protecting
the right of conscience of those who practice medicine. From what I've
read the last few days, there's a serious need for it.*

Secretary Leavitt, you did issue the proposed regulation, and it did aim
at one thing, protecting the right of conscience of those who practice
medicine. You did a good job at protecting their rights; unfortunately
it was at their expense of the American public.

**Recommendation**

I strongly urge that no action be taken to implement the proposed
regulations. Congress, and not HHS, will need to modify current laws to
ensure an appropriate balance between patient care and conscience
objection.

**Final Remarks to Secretary Leavitt**

Secretary Leavitt,

Consider the following:

1.  You created a straw man issue that was focused only on conscience
    protections while ignoring the more important issue of patient
    access to all relevant medical information.

2.  The leaked draft of the proposed regulation was clearly targeted at
    limiting access to contraceptives and abortions. You are guilty of
    using the same tactics you claim are "unfair."

3.  Your comments have been very biased towards supporting special
    interest groups over the needs of the American Public. The fact that
    this pandering occurred just prior to an election is very
    disturbing.

At a minimum you have demonstrated poor leadership and judgment on this
issue; at worst your actions can be construed as enabling and protecting
those in our society who wish to force their religious beliefs on
others. The appearance of impropriety and lack of impartiality is
clearly inappropriate for a person in your position. This renders you
incapable of representing the needs of all Americans as Secretary of
Health and Human Services, and I therefore call on you to resign your
position immediately.

Frank Goshey

"When the tyranny of the state is combined with the hypocrisy of the
church, you have a modern example of the twin vultures that have
devoured man, and his rights, throughout the ages" - Joseph Lewis