As Idaho Law Takes Effect, Measures Are ‘Area of Continuing Legal Controversy’

On Jan. 22, 1973, the U.S. Supreme Court handed down its decision in Roe v. Wade, guaranteeing a woman’s right to an abortion. Within weeks, Congress enacted the first ever so-called “conscience clause.”

Such clauses protect health care providers from liability for refusing to perform services that, though legal, they consider repugnant to their religious or moral values.

This March, Idaho’s legislature approved the Freedom of Conscience for Health Care Professionals Act, expanding that state’s conscience clause to preclude all licensed health care professionals — including clinical social workers — from having to counsel, advise, perform, dispense or assist in any health care services that violate their religious, moral or ethical principles, such as abortion.

Idaho isn’t alone in allowing providers to refuse services over matters of conscience. Forty-six states specifically exempt individual health care providers from having to perform abortion services if doing so goes against their conscience, according to statistics compiled by the Guttmacher Institute, a think tank that tracks sexual and reproductive health issues.

However, Idaho’s conscience clause, effective July 1, goes much further to state that health care providers don’t even have to offer a referral for services they themselves are unwilling to perform.

That has NASW Idaho Chapter Executive Director Delmar Stone concerned.

“It’s difficult enough for women to find reproductive health care services in our state,” Stone told NASW News. “This law is yet another road block.”

In Idaho, a mostly rural state with huge stretches of medically underserved areas, a health care professional’s refusal to provide services may be tantamount to a complete denial of care for the patient because of the lack of proximity to a willing provider.

Stone, who lobbied against the law, also is concerned about the potential for social workers to run roughshod over the profession’s code of ethics.

“Social workers may use the law to avoid making decisions based on ethical principles, and, instead, act out of religious doctrine in governing their professional behavior,” he noted.

Stone said he and other opponents of the law, which include AARP, will seek to overturn it next year, in the hope that its passage was nothing more than political grandstanding in an election year.

Even Idaho Gov. C.L. “Butch” Otter, a Republican, had reservations with the bill. He decided to let the bill become law without his signature.

In a letter to the Idaho Senate, Otter said: “Forcing health care professionals to provide services they find morally objectionable is unacceptable; however, negatively impacting patients’ rights ... is equally problematic.” He noted that future legislative sessions may have to fine-tune the law.

The debate over conscience clauses doesn’t begin and end with abortion, however.

Stone warns that the law also allows health care providers to ignore patients’ dying wishes, rendering meaningless an advance directive or living will — something Otter was particularly concerned about.

Conscience clauses also typically cover work with embryonic stem cells and pharmacists’ obligations to fill prescriptions such as birth control.

Nebraska’s Board of Mental Health Practice has been grappling over a proposed change to licensure regulations that would allow clinical social workers to deny services and referrals to clients based on the clinician’s personal beliefs. In this case, it’s the client’s sexual orientation or gender identity that has galvanized supporters of the change.

The controversy arose in 2008, when the board revised regulations to prohibit clinicians from discriminating against clients based on sexual orientation and gender identity.

Since that time, the Nebraska Catholic Conference has led a push to add a conscience clause to protect clinicians employed by the Catholic Church from having to provide or make referrals for services they consider repugnant to their religious beliefs, such as relationship counseling for same-sex couples.

Though Nebraska Catholic Conference Executive Director Jim Cunningham knows of no cases where a clinician employed by the church felt the need to refuse services, the prospect worries him.

“We know there have been instances where issues such as this have arisen in other jurisdictions,” Cunningham told NASW News. “So, we’re trying to be proactive and to seek protection of conscience to the extent that that is feasible.”

NASW Nebraska Chapter Executive Director Terry Werner tells a different story. “Never, ever, has this been an issue,” Werner told NASW News. “Therapists can always refuse services, but it is a violation to not refer clients to someone who will.”

Stone also can’t recall any instances of clinicians in Idaho expressing conflicts of conscience.

He and Werner say what’s going on in their states is indicative of a national movement. A handful of other state legislatures have expanded conscience clauses to cover referrals, and many more have legislation in the works.

“We are going to see more of this,” Werner warned. “But we as a profession have to draw a line in the sand. If something violates our code of ethics, we have to fight it. This is a slippery slope.”

In an April 29 letter to the Nebraska Board of Mental Health Practice, NASW Executive Director Elizabeth J. Clark affirmed that NASW supports the right of social workers to refuse to participate in services that violate their consciences.

“However,” Clark insisted, “legal or regulatory provisions that allow professionals to refuse to make appropriate, client-centered referrals conflict with professional social work standards of care and endanger the public.”

The NASW Code of Ethics is clear about social workers’ professional obligations to clients, regardless of their professional functions, the settings in which they work or the populations they serve.

It states: “Social workers respect and promote the right of clients to self-determination and assist clients in their efforts to identify and clarify their goals. Social workers may limit clients’ right to self-determination when, in the social workers’ professional judgment, clients’ actions or potential actions pose a serious, foreseeable, and imminent risk to themselves or others.”

Furthermore, several provisions from the code of ethics apply to conscience clauses, including the following expectations:

  • Maintaining clients’ interests as primary (Section 1.01);
  • Promoting clients’ socially responsible self-determination (Section 1.02);
  • Avoiding conflicts of interest and handling conflicts in a manner that makes the clients’ interests primary and in the event termination of the professional relationship is required, making proper referrals (Section 1.06);
  • Referring clients to other professionals when the social worker is not effective or making reasonable progress or when other expertise is needed to serve the clients’ needs fully (Section 2.06); and
  • Refraining from discrimination based on race, ethnicity, national origin, color, sex, sexual orientation, gender identity or expression, age, marital status, political belief, religion, immigration status or mental or physical disability (Section 4.02).

To that end, NASW policy dictates that “Every individual, within the context of her or his value system, must have access to family planning, abortion and other reproductive health services.”

Furthermore, it states, “social workers who choose to restrict their services to clients and the community in a way that deprives their clients or community of a comprehensive consideration of all legal reproductive health options have a responsibility to disclose the limited scope of their services and to assist clients in obtaining comprehensive services elsewhere.”

“As a chapter executive director,” Stone said, “I would hope that members take seriously the code of ethics and all of the work, thought and research that has gone into producing it, since it has helped to make us the professionals we are today.”

NASW’s Legal Defense Fund made the topic of conscience clauses its legal issue for the month of May. (Member access)

“Although the discourse has often unfolded along partisan lines, a broader view of the issues reveals conflicts between health professionals’ rights and obligations and patients’ rights to treatment that are not intrinsically linked to the conservative/liberal political dichotomy,” NASW said.

In the article, NASW pointed out that the patient’s right to informed consent is a well-established professional standard and legal protection that conflicts with provider refusal laws.

“The reach of conscience clauses and how they are to be interpreted in light of patient rights is an area of continuing legal controversy that is unfolding in state health professionals’ licensure boards and courtrooms across the country,” the article said.

It also argues that advance notice to clients regarding refusals to refer for services — a legal compromise tacked on to many states’ conscience clauses, including Idaho’s — is insufficient to protect the public.

“Clients who seek social work services may be vulnerable, uninformed, and in emotional distress, unable to determine at the initiation of services what may be the impact of the social worker’s refusal to refer them appropriately for services elsewhere and unable to effectively access services from an alternative provider without assistance,” the article said.

The article concludes: “Conscience clauses create deep controversy as certain provisions open the door to erode the expectation that clients’ needs are primary.”