Letter to President Obama

March 27, 2009

The Honorable Barrack Obama
1600 Pennsylvania Avenue
Washington, DC 20050

Reference: Rescission Proposal of final ruling published in the Federal Register on December 19, 2008 (73 FR 78072, 45 CFR Part 88).

Dear President Obama,

In response to the Department of HHS invitation to public comment, I offer the following observations. The Department specifically asked for:

1. Information, including specific examples where feasible, addressing the scope and nature of the problems giving rise to the need for federal rulemaking and how the current rule would resolve those problems;

Response 
The ruling by the Bush administration did not create new federal rules; it merely clarified existing federal regulations that protect the right of conscience and religious freedom.

2. Information, including specific examples where feasible, supporting or refuting allegations that the December 19, 2008 final rule reduces access to information and health care services, particularly by low-income women;

Response
Access to so called health care cannot be limited by the December 2008 ruling as it does not require that physicians do not provide such services; it merely protects those who currently do not provide the services in accord with their religious beliefs. Thus, there was no “burden” imposed by the current ruling whatsoever.

3. Comment on whether the December 19, 2008 final rule provides sufficient clarity to minimize the potential for harm resulting from any ambiguity and confusion that may exist because of the rule; and

4. Comment on whether the objectives of the December 19, 2008 final rule might also be accomplished through non-regulatory means, such as outreach and education.

Response 
The December 2008 ruling provides clarity of existing law and protects against potential lawsuits that would be brought due to violation of religious rights. The ruling was necessary since current federal regulations were not being enforced and have been challenged in court, thus creating needless litigation and expenses to both the health care industry and the court systems.

The department asserts that the present rule might somehow limit access to health care and thus impose a burden to the public. The proposal to rescind insists it “will not have a significant effect on a substantial number of small entities.” In reality, rescinding the ruling and altering existing federal regulations would in fact, impose a significant burden on the public and those entities that currently do not provide services such as abortion and sterilization. For example, Catholic hospitals currently account for nearly 30% of the nation’s facilities. By rescinding the present ruling and removing conscience protection, such entities would be forced to close their facilities. Morally concerned physicians and candidates for the medical profession would either choose a different career path or perhaps, seek to practice in a different country.

In addition, confidence and trust is a critical part of the doctor-patient relationship. Because of this, patients seek out doctors who embrace their own moral beliefs and values, knowing they will be guided properly in medical decisions. But if conscience protection is removed, millions of patients will be hard-pressed to find like-minded physicians. Without question, the removal of conscience protection most certainly, will have a “significant effect” on access to quality healthcare in the United States!

Further, while the proposal to rescind states that “Individuals and States are not included in the definition of a small entity” it is precisely because of such ambiguity that the language on the “individual” as a health care entity was specifically and rightfully included in the current ruling. Hospitals do not perform abortions; people do. And as such, they are entitled to protection under the US Constitution to practice their profession in a manner that does not violate their conscience and their freedom of religion.

Why is this so? Because conscience is not merely a whim of the intellect whereby an individual decides his course of action in a given situation; rather it is intimately integral to the practice of one’s religious beliefs. And historically, the courts have acknowledged this fact.

In 1965, United States vs. Seeger 380 U.S. 163, Justice Clark, in delivering the court opinion, cited precedence from previous Supreme Court decisions on the fundamental primacy of this sacred right, quoting from U.S. vs. Macintosh, 283 U.S. 605 (1931):

“In the forum of conscience, duty to a moral power higher than the State has always been maintained. In a similar vein Harlan Fiske Stone, later Chief Justice, drew from the Nation’s past when he declared that ‘Both morals and sound policy require that the state should not violate the conscience of the individual. All our history gives confirmation to the view that liberty of conscience has a moral and social value which makes it worthy of preservation at the hands of the state. So deep in its significance and vital, indeed, is it to the integrity of man’s moral and spiritual nature that nothing short of the self-preservation of the state should warrant its violation; and it may well be questioned whether the state which preserves its life by a settled policy of violation of the conscience of the individual will not in fact ultimately lose it by the process.’ Stone, The Conscientious Objector, 21 Col. Univ. Q. 253, 269 (1919).

“Putting aside dogmas with their particular conceptions of deity, freedom of conscience itself implies respect for an innate conviction of paramount duty. The battle for religious liberty has been fought and won with respect to religious beliefs and practices, which are not in conflict with good order, upon the very ground of the supremacy of conscience within its proper field.”

Conscience in the theological sense is in fact, the very foundation of religion. It is inherent in the Natural Law, imbedded in the soul of every individual with the right to know and serve God as He instructs the heart. The Catechism of the Catholic Church which defines the laws and practices of its faith, describes conscience as “the aboriginal Vicar of Christ.”

Historically, the Church has placed paramount importance on the duty of adhering to moral conscience. “The Divine Law,” says Cardinal Gousset, “is the supreme rule of actions; our thoughts, desires, words, acts, all that man is, is subject to the domain of the law of God; and this law is the rule of our conduct by means of our conscience. Hence it is never lawful to go against our conscience; as the Fourth Lateran council (1215 AD) says, ‘Quidquid fit contra conscientiam, aedificat ad gehennam.'” [“Whatever is done in opposition to conscience is conducive to damnation.”]

Any attempt to remove conscience protection from existing federal law would not only directly violate Catholic religious freedom, it would also breach other areas of the Constitution. As noted by Justice Douglas, one of the concurring Supreme Court judges, in US vs. Seeger:

“For then those who embraced one religious faith rather than another would be subject to penalties; and that kind of discrimination, as we held in Sherbert v. Verner, 374 U.S. 398 , would violate the Free Exercise Clause of the First Amendment. It would also result in a denial of equal protection by preferring some religions over others – an invidious discrimination that would run afoul of the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497”

In conclusion, I should like to quote from Pope Paul VI who described the duty of all God-fearing persons regarding this primordial right: “Deep within his conscience man discovers a law which he has not laid upon himself but which he must obey. Its voice, ever calling him to love and to do what is good and to avoid evil, tells him inwardly at the right moment: do this, shun that. For man has in his heart a law inscribed by God. His dignity lies in observing this law, and by it he will be judged. His conscience is man’s most secret core, and his sanctuary. There he is alone with God whose voice echoes in his depths.” (Gaudium et Spes 16.)

It is unconscionable that in this great country that was founded by men and women who fled religious persecution, the Federal Government would consider requiring our highly respected members of the medical profession to choose between God and country. I urge you to consider the irreversible damage inflicted not only to the founding principles of our nation, but also to American healthcare and the religious sensibilities of its citizens, both physicians and patients alike.

Sincerely,

Debra L. Vinnedge 4613 Barfield Crescent Rd Murfreesboro, TN 37128

CC:  The Honorable Kathleen Sebelius, Dept of Health and Human Service Electronic
Original submission: Public comments www.regulations.gov