Thursday, December 17, 2009

Important Aspect of Health Care Reform: It Must Not Strip State Laws That Provide Stricter State Laws That Protect Patients' Rights.

An article at PR Newswire highlights the struggles that individual states are now having to ensure that sweeping health care reform does not limit their strict patients' rights laws.

How telling is it that in a few weeks, advocates have gone from hoping that the health care bill would override lax state laws - guaranteeing patient's more rights to health care access - to working to prevent the bill from undoing strict state patients' rights laws! The destruction of the health care bill - to make it basically a bail out for private insurance with mandated citizen buy-in (Merry Christmas insurance industry! You truly do get what you paid for!) has flipped the focus completely.

For more information on health care mandates in Massachussettes (which the administration has cited as a premier example of how mandates alone can lower prices) see here.

Key members of the U.S. House of Representatives have sent a warning to Senate and House leaders that the fine print of the Senate health reform bill would strip many states, including California and Maine, of hard-won patient rights and benefit requirements, reported Consumer Watchdog.

The letter, signed by all of the Democratic members from California and both members from Maine, lists key patient rights that will be lost in both states if the bill continues to allow insurers to sell policies in multiple states, while disregarding any state benefit requirements that are stronger than those of the weakest state.

Download the letter, spearheaded by Congresswoman Jackie Speier (D-CA), at:

"The fine print of the Senate health reform bill would deliver yet another of the insurance industry's top agenda items -- pre-emption of state patient protection laws," said Jerry Flanagan, Health Care Policy Director for Consumer Watchdog. "With the apparent elimination of the public option and the Medicare buy-in for those over 55, coupled with these pre-emption provisions, health reform has shifted from patient protection to insurer profit protection."

Insurance companies have long demanded the right to sell nationwide and multi-state plans to small businesses and individuals, arguing that the premiums would be cheaper if the plans did not have to obey state laws. However, Consumer Watchdog noted that patients would soon find that maternity care, reconstructive surgery after cancer and even HIV/AIDS testing, among many other benefits, were not covered. Regulators in all but the state in which the policy was issued would have their hands tied, with no power to compel any coverage or treatment.

17 states, which currently have more than 50 health benefit mandates in state law, have the most to lose under the pre-emption provisions. Those states, representing 54% of the U.S. population, include: California, Colorado, Connecticut, Florida, Louisiana, Massachusetts, Maryland, Maine, Minnesota, New Mexico, Nevada, New York, Pennsylvania, Rhode Island, Texas, Virginia and Washington. (Source: Craig Bruce & J.P. Wieske, "Health Insurance Mandates in the States 2009," Council for Affordable Health Insurance," page 4 (2009)).

The Congressional Budget Office found that five of the state coverage mandates considered by insurers to be the most expensive have in fact only a marginal impact on premiums, ranging from 0.28 to 1.15 percent.(1) Massachusetts, which has among the strongest state mandates, calculated the total net cost on premiums to be only 3 percent to 4 percent (2) compared to the 25 percent to 27 percent of premiums that insurers spend on overhead and profit.(3) What insurers are not saying, according to Consumer Watchdog, is that state coverage mandates that ensure access to basic health care needs are necessary to prevent and manage disease, or to treat it before it becomes severe and more expensive to care for.

Senate Bill Rehashes Bush-Era "Association Health Plan" Agenda

Both the "nationwide plans" and "state compact" pre-emption scenarios are similar to a failed 2006 bill, S. 1955, by Sen. Mike Enzi (R-Wyo.) who championed President Bush's health agenda. Pre-emption of state health care laws was a bad idea in 2006, and it is a bad idea now, said Consumer Watchdog.

Instead, the final Senate health reform bill should be modeled on existing federal health care laws which provide for a federal-state partnership rather than federal pre-emption of more protective state standards. Minimum federal standards should set a floor, not a ceiling, on state health care protections said Consumer Watchdog.

Fine Print of U.S. Senate Health Reform Bill

Section 1333, beginning on page 219, of the Senate bill, HR 3590, would allow insurers to form "health care compacts" (page 219) and "nationwide plans" (page 222) which would only be subject to the health benefit mandate laws and regulations of the state in which the policy was "written or issued."

Assuming that the proposed new national minimum benefit guidelines (page 102, section 1302) would apply to the compacts and Nationwide plans, these national minimums would become default rules because insurers would certainly choose to be regulated by the weakest state.

An amendment proposed by Senator Snowe (R-ME) and Senators Landrieu (D-LA) and Lincoln (D-AR) would eliminate a state's ability to "opt-out" of allowing nationwide plans to be sold. Download the Snowe/Lincoln/Landrieu amendment here:

"The Snowe amendment would make a difficult task impossible. Under the current version of the bill, state legislators may nominally refuse to allow insurance companies to sell bare-bones 'nationwide' policies in their state. However, the 1,000 health insurance lobbyists estimated to be working the federal health reform bill, and the industry's unlimited capacity to buy votes with campaign contributions, would be marshaled to advance the insurers' interest at the state level," said Flanagan.

Consumer Watchdog is a nonpartisan consumer advocacy organization with offices in Washington, D.C. and Santa Monica, CA. Find us on the web at:

1) Congressional Budget Office, Increasing Small-Firm Health Insurance Coverage Through Association Health Plans and HealthMarts 21 (January 2000).

2) Massachusetts Division of Health Care Finance and Policy, Comprehensive Review of Mandated Benefits in Massachusetts: Report to the Legislature 4 (July 2008).

3) Cathy Schoen, et al., "Building Blocks for Reform: Achieving Universal Coverage With Private and Public Group Health Insurance," Health Affairs, Volume 27, No. 3, May/June 2008, p. 647.

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What's the Difference? Palliative Sedation and Aid in Dying.

A new paper from the conservative Center for Bioethics and Human Dignity works hard to explain the difference between palliative sedation (approved by the Religious Right) and aid in dying (what they call physician assisted suicide). There is a podcast of the paper at the link.

In the wake of Mark McConnell's oral arguments before the Montana Supreme Court in Baxter v. Montana in which he convincingly argues that there is "no bright line" between the two, I've seen a lot of attacks on such a premise. This is just the latest.

Here's the abstract:

The last presidential election saw Washington become the second state to legalize physician-assisted suicide (PAS). Pressure will increase for other states to follow suit so that those who are terminally ill can exercise the full scope of their “autonomy” and “die with dignity” through PAS if they so choose. Many concerned persons see trends toward legalizing PAS and the broad acceptance of euthanasia as not upholding the inherent dignity of human persons as is often claimed, but actually undermining it.

Christians engaged in palliative care have a responsibility to do what is permissible within theological, ethical, and legal boundaries to serve and treat their patients. Palliative sedation is thought to be an advance in palliative care that has alleviated the need for PAS when managing otherwise uncontrollable pain in the terminally ill. However, there is some question as to whether this procedure is sufficiently distinct from euthanasia and PAS. It may be argued that if there is no legitimate distinction, then PAS and other forms of euthanasia should be legal and legitimate end-of-life treatment options for patients along with palliative sedation. If this view is correct, then Christians who support the use of sedation in the terminally ill should have no problem with the practice of PAS.

This issue is important for health care professionals, pastors, Christian counselors, chaplains, and others, who may be called upon to support patients and their families concerning end-of-life treatment options. This paper argues that there is a legitimate moral distinction between these practices and that those who oppose euthanasia while maintaining the appropriateness of palliative sedation in certain situations are not acting inconsistently. Thus, palliative sedation in some circumstances, as a form of palliative care for the terminally ill, is morally permissible and does not violate the intrinsic dignity of vulnerable patients.

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The USCCB and the Consolidated Appropriation's Act.

Cardinal DiNardo, Director of the USCCBs ProLife Activities wrote and delivered a letter to Senators that gets deep in the thick of abortion discrimination in the health care bill. In particular, he takes up the Senate vote on the 14th for the Allocations Consolidation Act which, well, does what it says. Look below for how the USCCB parses the language of Hyde to cover new insurance plans (which, since the public option or anything actually close to reform have been dropped.)

December 14, 2009

As we have stated many times, the Catholic bishops of the United States strongly support authentic reform of our ailing health care system – reform that will respect the life, health, and consciences of everyone. We have especially focused on three moral criteria for reform: respect for life and conscience; affordability for the poor; and access to much- needed basic health care for immigrants.

Thus far the Senate reform bill, in our view, has fallen short of the example set by the House version of this legislation in each of these areas. But perhaps the most contentious issue has been that of abortion coverage, with the Senate on December 8 voting to table (set aside) an amendment by Senator Ben Nelson (D-NE) that was virtually identical to language already overwhelmingly approved by the House on this issue.

The central argument against the Nelson amendment, voiced during floor debate by many Senators, was that this amendment goes too far by barring federal subsidies to entire health plans that include abortion coverage. The three-decades-long precedent of the Hyde amendment and similar provisions governing all other federal health programs, it was claimed, is this: Federal funds may not be used “directly” for an elective abortion, but non-Federal funds such as private premium dollars may be used in the same health plan for such abortions.1 The underlying health care reform bill was said to respect this tradition by “segregating” funds with plans to allow “private” funding of abortion. It was chiefly on the basis of this argument that the Nelson amendment was tabled (see attached sheet of quotes from Senate floor debate).

However, yesterday’s overwhelming vote to approve the Consolidated Appropriations Act creates a new situation. In that vote, almost all Democrats, including almost every Senator who claimed the Nelson amendment’s policy goes too far, voted in favor of that exact policy. For these Senators voted to retain the actual current language of the Hyde amendment, and of the parallel provision governing abortion in the Federal Employees Health Benefits Program – and that language clearly requires a policy in all other federal health programs that is identical to that of the Nelson amendment.

Here is the language of the Nelson amendment that Senators claimed was new and unprecedented:

1 No abortion provision at issue forbids funding abortions (or plans including abortion) when the mother’s life is endangered or in cases of rape or incest; these exceptions are not at issue and will not be included in quotes from the provisions. Abortions not covered by these exceptions are here called “elective” abortions. No funds authorized or appropriated by this Act (or an amendment made by this Act) may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion.

Here is the Hyde amendment, governing all current programs funded by the Labor/HHS appropriations bill, which the Senate just voted to reaffirm:

None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for any abortion.... None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for health benefits coverage that includes coverage of abortion.... The term "health benefits coverage" means the package of services covered by a managed care provider or organization pursuant to a contract or other arrangement.

(H.R. 3288 as approved by the Senate on December 13, Division D, sec. 508; emphasis added)

The Hyde amendment states further that it does not prevent use of state, local or private funds for abortions, as long as these are separate from the state matching funds that combine with federal funds to purchase a benefits package. In other words, not only federal funds, but other funds used to purchase the same package, may not pay for elective abortions.

Here is the parallel provision governing the Federal Employees Health Benefits Program, which the Senate also approved yesterday:

No funds appropriated by this Act shall be available to pay for an abortion, or the administrative expenses in connection with any health plan under the Federal employees health benefits program which provides any benefits or coverage for abortions.

(H.R. 3288 as approved by the Senate on December 13, Division C, sec. 613; emphasis added)

Neither of these longstanding provisions says anything about “segregating” private and federal funds within a health plan or benefits package. Attempts to achieve such segregation are irrelevant to current policy, which bars federal funds from being used for any part of a package that covers elective abortions.

Literally the only substantive difference between these noncontroversial and widely supported provisions and the Nelson amendment is that the latter explains at length that (a) it does not prevent purchasers who do not receive federal subsidies from buying a health plan including elective abortions, even on the Exchange created by the health care reform bill, and (b) it does not prevent purchasers receiving federal subsidies from buying separate supplemental abortion coverage with their own funds.


The Consolidated Appropriations Act also maintains important current laws protecting conscience rights: The Hyde/Weldon amendment (Sec. 508 (d) of Division D), to prevent governmental bodies from discriminating against health care providers that decline involvement in abortion; and two provisions to respect moral and religious objections to mandated contraceptive coverage (in the federal employees’ health program and in the District of Columbia). The first of these is included in the House-passed health care reform bill (Sec. 259 of H.R. 3962); the Senate bill does not yet include any of them.

From the outset of the health care reform debate, we have not sought to use this legislation as a vehicle for advancing the pro-life cause – and we have urged others not to use it to advance the pro-abortion cause. The current Senate bill fails to achieve this balance. While its abortion language has been called a “compromise,” it is only a compromise between current law and a broader policy on abortion funding, as it explicitly authorizes the use of federal funds to subsidize health plans covering elective abortions for the first time in history. Health care reform is too urgently needed to be placed at risk by one lobbying group’s insistence on changing the law. Before the Senate considers final votes on its health care reform legislation, please incorporate into this bill the longstanding and widely supported policies of current law, acknowledged and reaffirmed by the Senate itself only yesterday. Please give the American people health care reform that respects the life, health and consciences of all.


Daniel Cardinal DiNardo Archbishop of Galveston-Houston Chairman, Committee on Pro-Life Activities United States Conference of Catholic Bishops

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Homosexual Adoption and the Catholic Church.

For some reason, gay rights seems to get more traction when up against the Catholic Church than, say, women's rights. I'm not complaining. Any time citizens rights trump the teachings of the Church over federally funded social services, I'm happy to see discrimination addressed.

From the Cathlolic Right LifeSiteNews, an update of the issue of Catholic adoption services in San Francisco not complying with non-discrimination laws there - and screaming religious persecution.

A panel of eleven judges of the Ninth Circuit Court of Appeals sitting in San Francisco will hear oral arguments tomorrow, December 16, concerning the constitutionality of the San Francisco Board of Supervisor's resolution attacking the Catholic Church for its teachings against homosexual adoptions.

The en banc panel, consisting of all the judges of the court, will review the earlier opinion of a three-judge panel of the Ninth Circuit that upheld the resolution.

The anti-Catholic resolution, adopted March 21, 2006, was challenged by the Thomas More Law Center, a national Christian legal advocacy group based in Ann Arbor, Michigan, on behalf of the Catholic League and two Catholic residents of San Francisco. The challenge was made on the grounds that the resolution expresses government hostility toward the Catholic Church and its moral teachings in violation of the Establishment Clause of the Constitution.

The city Board's resolution was issued in response to a directive from Cardinal William Levada, in which he instructed Catholic Charities of San Francisco to follow Church teaching and not begin adopting children to homosexuals.

The resolution refers to the Vatican as a "foreign country" meddling in the affairs of the city and proclaims the Church's moral teaching and beliefs on homosexuality as "insulting to all San Franciscans," "hateful," "insulting and callous," "defamatory," "absolutely unacceptable," and says that Church teaching shows "insensitivity and ignorance."

The Board's resolution makes reference to the Inquisition and it urges the Archbishop of San Francisco and Catholic Charities of San Francisco to defy Church directives.

A lower federal court's dismissal of the case based on the pleadings was later affirmed by the three-judge panel of the Ninth Circuit.

However, on November 5, 2009, a majority of the Ninth Circuit judges voted to grant the Law Center's petition for an en banc (full bench) rehearing.

Richard Thompson, President and Chief Counsel for the Law Center, remarked, "It seems the only bigotry and prejudice these so-called liberal politicians tolerate is anti-Catholicism. To them the only good Catholics are the bad Catholics who ignore the teachings of their Church."

"Our constitution plainly forbids government interference in, and hostility toward, religion, including the Catholic faith. And we are fully committed to fighting homosexual activists who seek to promote their personal political agenda at the expense of our constitutional freedoms."

According to Catholic doctrine, allowing children to be adopted by homosexuals would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment not conducive to their full human development.

"Such policies are gravely immoral and Catholic organizations must not place children for adoption in homosexual households," the Law Center argued.

According to the Law Center, the "anti-Catholic resolution sends a clear message to Plaintiffs and others who are faithful adherents to the Catholic faith that they are outsiders, not full members of the political community, and an accompanying message that those who oppose Catholic religious beliefs, particularly with regard to homosexual unions and adoptions by homosexual partners, are insiders, and favored members of the political community."

The full text of the San Francisco City Board Resolution.

The full text of the Thomas More Law Center's Petition for Review.

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Dictatorship of Relativism.

Pope Benedict spoke in Rome the other day.

Here's a clip from the story at Catholic News Agency:

“Policraticus” (The Man of Government), the second work to which Pope Benedict referred, signals the existence of "an objective and immutable truth, whose origin is in God, a truth accessible to human reason and which concerns practical and social activities.” “This is a natural law," said the Pope, "from which human legislation and political and religious authorities must gain their inspiration to promote the common good."

John of Salisbury gave the name “equity” to this concept of natural law, through which every person is given his rights.

"This is the central thesis of Policraticus," said the Pope.

"The question of the relationship between natural law and positive law, as mediated by equity, is still of great importance," remarked the Pontiff. "Above all in some countries, we witness a worrying detachment between reason, that has the task of discovering ethical values tied to the dignity of the human person, and liberty, that has the responsibility of accepting and promoting these values."

If John of Salisbury were here today, conjectured the Pope, he "would remind us that only those laws that to defend the sacredness of human life and reject the legitimacy of abortion, euthanasia and unrestrained genetic experimentation are equitable, those that respect the dignity of matrimony between man and woman, and that are inspired to a correct secularism of the state - secularism that must always allow for the safeguarding of religious freedom - and that seek subsidiarity and solidarity at the national and international level."

"Otherwise," concluded the Pontiff, "we would end up with... "the dictatorship of relativism." That dictatorship "doesn't recognize anything as definite and leaves as its ultimate measure only the self and its desires."

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Church and State in North Carolina.

The Friendly Athiest takes a look at the case in North Carolina where a law on the books requires that only Christians can serve in office, in defiance of the US Constitition. FA links to a segment done by Rachel Maddow, and asks why more churches in the area aren't speaking out against the archaic and unfair law.

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The Church, The Supreme Court, and Property Ownership.

A church in California is petitioning to have their appeal case heard before the Supreme Court. In essence, when a local church changed it's denomination, the Anglican church came in and took their property, property the congregation had purchased on its own. California courts said this could happen but opponents found the decision to favor one denomination, in this case a large and powerful one, over another.

The constitutional issues St. Luke's is raising before the U.S. Supreme
Court go far beyond the Episcopal Church. Every local church, temple,
synagogue, parish, spiritual center, congregation or religious group which
owns its own property through a religious corporation, and has some
affiliation with a larger religious group, is now at risk of losing its own
property in California. As a result, religious freedom is suppressed, as
those who have sacrificed to build their local religious communities are now
at risk of having their properties taken based on some past, current or
future spiritual affiliation. A United States Supreme Court decision in
favor of St. Luke's would benefit local church property owners throughout
the country because it would allow them the ability to freely exercise their
religion without risk of losing their property.

The people of St. Luke's Anglican Church have owned, and sacrificed to build
and acquire their church properties for many decades without any financial
support from the Episcopal Church. St. Luke's Anglican Church never agreed
to relinquish its property to the Episcopal Church upon a change of
religious affiliation to another part of the worldwide Anglican Communion,
and has consistently maintained that it has the right to use and possess its
own property.


How New Mexico's Human Rights Act Can Work.

From Religion Clause, an odd, contested case in New Mexico, below. Shows you what I know: I never expected that the court could require a person to serve, to photograph (in this case), a job she didn't want to. For more on New Mexico's Human Rights Act, see here. And the Religious Freedom Restoration Act here.

This case reminds me of the issue with Bob Jones University's prevention of integration and interracial dating, the latter of which was outlawed on campus until the late date of 1983. Although the business mentioned below, I assume, doesn't receive federal funds, the University did. What makes me make the connection is the use of religious grounds to justify discrimination. And if New Mexico is intolerant of religious discrimination, has the law been applied to women's reproductive rights and Catholic hospitals?

There is a hospital merger case that comes to mind. For two years, community members and advocates from Women's Law Center and The MergerWatch Project fought to guarantee that the merger did not end delivery of women's reproductive services. You can google St. Vincent's and New Mexico and read more about the story. (Note to self: learn more about New Mexico politics!)

In Elane Photography, LLC v. Willock, (NM Dist. Ct., Dec. 11, 2009), a New Mexico trial court held that a limited liability company owned by a husband and wife and operating a photography business violated New Mexico's Human Rights Actwhen owner-photographer Elaine Huguenin refused to photograph a same-sex commitment ceremony. Upholding finding by the state's Human Rights Commission (see prior posting), the court concluded that the company was a public accommodation that discriminated on the basis of sexual orientation. It held that application of the HRA did not violate Huguenin's freedom of expression because she is merely a conduit for her client's message in the photos. Huguenin had argued that enforcement of the HRA here forced her to convey a message that a marital relationship can exist between two individuals of the same sex.

The court also concluded that enforcement did not infringe Hugenin's free exercise of religion. Huguenin argued that this forced her to attend a religious ceremony that violates her conscience. The court held however that the HRA is a neutral law of general applicability. Finally the court rejected a claim under the New Mexico
Religious Freedom Restoration Act. Alliance Defense Fund announced yesterday that it will appeal the decision.

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