What Happened to the Conscience Clause?

Amy Sullivan asks today at Time's Swampland what the status is of the conscience clause, that nasty rule that the second Bush rammed through in his final month as president. A year ago, the Obama administration asked around for some opinions on the law that allows practically anyone in the medical field to discriminate against a woman's access to emergency birth control, contraception, or other services that they don't agree with.

The most commonly used scenarios when discussing the clause are these:

A woman walks into her neighborhood pharmacy with a prescription for birth control. The pharmacist looks at the prescription and says: a) we don't fill that, period, b) let me get my colleague to fill that for you, c) there's a pharmacy on the next corner that will fill that for you

Or

A rape victim finds her way to an emergency room where she is treated with a standard rape kit and: a) is not informed of emergency contraception that would prevent her from being impregnated by her attacker, b) is told what emergency contraception is and, after another test, is given the medication (Catholic hospitals will often only give EC if the victim has no chance of getting pregnant) c) is told that another facility will provide her with EC if she wants it but not the one she is in

In the first scenario, the woman may be shamed by the pharmacist, or she may be inconvenienced. Unless there is another person on hand to fill out the prescription, she will be at the mercy of the person behind the counter who has decided what her rights to prescriptions should be.

In the second scenario, the victim, most likely in an emotional and vulnerable state, will have a care-giver decide how able she is to protect herself from an unwanted pregnancy or how inconvenienced she will be to prevent that pregnancy.

Enforcing two medical ethics laws could right these discriminations: the right to informed consent where a patient is told of all legal, medically sound treatments; and the right to meaningful referral which would allow a pharmacist or doctor to deny administering objected services but would also protect the patient from discrimination by giving them an option.

But as it has always gone with abortion, so it goes under the Bush conscience clause with birth control. Medical professionals - and denominational hospitals - have refused to comply with demands for informed consent or referrals, saying that telling someone where to get an abortion is the same as performing the abortion. Telling someone where to get birth control or EC is the same as giving it to them.

Sullivan writes:

I suspect that as with Obama's campaign pledge to repeal the Bush executive order allowing faith-based groups that receive federal funds to discriminate in hiring, the White House quickly learned that some of its allies in the religious community liked the conscience rule and didn't want to see it taken away. So they apparently decided to lay low and hold off on making any changes. What's surprising is that they've gotten away with it so far without vocal protests from the choice community.

She's right. The entire fiasco over abortion in health care came about because the administration has strongly courted religious leaders with anti-choice objectives. And she's right that choice activists have not pushed hard to rescind the conscience clause; they're still recovering from being out-maneuvered by the anti-choice gang this past year.

But Amy Sullivan is wrong about the conscience clause disappearing from the radar since last February. Those working to exclude abortion access from the new health care bill have made the insertion of a Bush-like conscience clause part of their demands. I suspect the Obama administration chose to lay off the subject until the health care bill was passed, allowing for the particular conscience fight to be a separate one.

With health care reform on the lam and choice activists regrouping, I don't expect to hear much about the conscience clause for a while. And that means women will continue to experience discrimination, denial of their health care rights and increasing inconvenience in planning their reproductive futures for some time to come.