Revising Provider Refusal Laws to Make Health Care A Civil Right.

There's a recent post by Peter Wilson at conservative American Thinker that's making the "pro-life" internet rounds. It addresses the provision in the Patient Protection and Affordable Care Act (the health care bill), Section 1553, that "protects" doctors from participating in assisted suicide (or aid in dying, death with dignity, etc.). The full text of the section reads (second source here):

SEC. 1553. PROHIBITION AGAINST DISCRIMINATION ON ASSISTED SUICIDE.

(a) In General- The Federal Government, and any State or local government or health care provider that receives Federal financial assistance under this Act (or under an amendment made by this Act) or any health plan created under this Act (or under an amendment made by this Act), may not subject an individual or institutional health care entity to discrimination on the basis that the entity does not provide any health care item or service furnished for the purpose of causing, or for the purpose of assisting in causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing.

(b) Definition- In this section, the term `health care entity' includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.

(c) Construction and Treatment of Certain Services- Nothing in subsection (a) shall be construed to apply to, or to affect, any limitation relating to--

(1) the withholding or withdrawing of medical treatment or medical care;

(2) the withholding or withdrawing of nutrition or hydration;

(3) abortion; or

(4) the use of an item, good, benefit, or service furnished for the purpose of alleviating pain or discomfort, even if such use may increase the risk of death, so long as such item, good, benefit, or service is not also furnished for the purpose of causing, or the purpose of assisting in causing, death, for any reason.

(d) Administration- The Office for Civil Rights of the Department of Health and Human Services is designated to receive complaints of discrimination based on this section.

The clause protects providers who refuse to participate in legal aid in dying -- a point that should make "pro-life"groups very happy. No doctor, if asked by a terminal patient to provide a fatal dose of drugs, is obligated to write the prescription. But Wilson, forgetting that many who observed the New Year's Eve Montana Supreme Court decision Baxter v. Montana that determined aid in dying was legal there clamored for a strong conscience clause to protect doctors from having to participate. This clause does so. (Death with Dignity laws in Oregon and Washington, the other two states where aid in dying is legal, already include clear provider refusals that protect doctors from participating.)

But Wilson is trying -- and failing -- to get at something much more subtle. "Pro-life" groups in their activism oppose aid in dying in all its forms as they define them, including removal from futile care, removal from nutrition and hydration (see Terri Schindler Schiavo Foundation) and even, among extreme groups and individuals, palliative sedation. This section of "Obamacare," as Wilson and conservative opponents of the bill call it, clearly defines what "assisted suicide" is.

Wilson asks Rita Marker, executive director of the International Task Force on Euthanasia and Assisted Suicide (and pal of ultra-conservative, pseudo-science proponent Wesley J. Smith) what she thinks of 1553. She calls it, "a 'bizarre conscience clause' for those who refuse to participate in assisted suicide." Fair enough, I guess, depending on what she means by bizarre.

Provider refusal clauses -- so-called "conscience clauses" are a bit of a mess right now, as Wilson points out. The history of provider refusal clauses is rather brief -- and marks the point when technology began to overtake conservative ideas of women's roles in society and medical imposition to God's provenance -- and began as a reaction to the legalization of abortion in 1973. What were once "protection" of doctors from performing medical services they morally or religiously objected to morphed into "protection" of entire institutions, like the Catholic church which is the second largest provider of health care in the U.S.

Backlash to Roe v. Wade has expanded these federal laws (as noted below, states have their own blanket of provider refusals) to include increased rights of doctors at the detriment of rights for patients. Some do not require referrals -- a doctor is not required to give a woman, gay or elder patient a meaningful referral for services -- or informed consent -- a doctor is not required to tell a woman, gay, or elder patient all of their medical options. Some are renewed annually because they are attached to federal funding (hence the phrase "no federal funding for abortion," which is not factual: the clause only applies to Medicaid funds but exemplifies the slow creep of these laws).

I note women, gays and elders because these are the groups most often targeted by provider refusals. Here's a brief history of the federal laws that are currently on the books:

In 1976 the Hyde Amendment established that no federal monies allocated to Medicaid could be used to pay for abortions. Hyde, renewed each year, has been challenged in the courts numerous times and upheld (see Maher v. Roe.) The language has become more limiting over the years and during the health care debate, feminists had to admit that their historical acceptance of this law allowed it to morph into blatant discrimination against the poor. They have renewed their calls for overturning Hyde.

The first of the provider refusals, or so-called “conscience clauses,” the 1973 Church Amendment, named for Frank Church (D-ID), protects health care “entities” or individuals who accept Medicaid from discrimination for their choice to perform or not perform abortions. States enacted their own subsequent laws and today, according to the Guttmacher Institute, 46 states allow providers to refuse abortion services. Forty-three allow institutions to do so.

Republicans gained majority in the House in the 1994 elections for the first time since 1954, initiating a new wave of abortion restrictions. The 1996 Coats Amendment was a reaction to the requirement made by the accrediting body for OB/GYNs that students must receive abortion training. Congress stepped in to preempt the requirement.

In 2005, the annual Weldon Amendment was first attached to the appropriations measure that funds the Labor, Health and Human Services and Education departments. It stipulates that neither individuals nor “health care entities,” can be discriminated against for refusing to pay for, cover, or refer for abortion services.

And in December of 2008, what’s been called a “parting gift” from the Bush administration, the greatest expansion of refusal laws was enacted with support from the U.S. Conference of Catholic Bishops (USCCB) and the Catholic Health Association. In essence, it sold patients down the river and gave religious providers (individuals and institutions) not only the right to deny services but information about or referrals for them.

Since the Obama administration addressed the “conscience clause” last year the Catholic Church has mounted a campaign to retain it. Without such protections, the Church would lose the ability to dictate the services its providers perform and its more than 100 million annual patients receive.

Wilson's truncated history of provider refusals only hints at their 30 year creep and authoritarian nature. Once written to protect the conscience of individual doctors, a noble intent, they now allow institutions, most egregiously, the Vatican via the United States Conference of Catholic Bishops, to determine not only what care is provided to millions of patients but what available, legal care those patients can be informed of and referred to.

Rita Marker, without such intention, most clearly noted this creep in a recent article, also for American Thinker:

Some years ago, I was speaking to a Nebraska state senator after testifying on a pending bill. I had explained that I wasn't saying that the bill would be interpreted in a certain way, only that it could be. Then he said something I've never forgotten. "Be assured that if a law can be interpreted in a certain way, it will be -- by someone. And it will all be perfectly legal."

Unfortunately, the greatest resources and organization reside in the hands of institutions, churches, and other organizations determined to limit the use of medical technology based on denominational, theological or authoritarian principles. Not to that lone woman who is pregnant, shamed, in a traumatic situation; not to the dying elder who is suffering and no longer wants to be fed through a PEG tube in his belly, not to the rape victim; not to the doctor employed by a Catholic hospital but prevented from telling a troubled teen how to avoid getting HIV.

And here is another lesson for us about our form of Democracy. Majority rule defies the rights of minorities by supplanting individual conscience with the loudest and most funded voices in the country. If it is indeed the intention that counts, these laws are no longer intended to protect an individual doctor's conscience. They are used as tools by those who wish to make abortion, aid in dying and other patients' rights illegal -- or more importantly, legal but completely unaffordable and inaccessible.

And here is Wilson's objection to section 1533 of the health care bill: "it reframes the debate as one of civil rights, and brings assisted suicide more into the mainstream." The debate about patients' rights is already about civil rights; and it is already mainstream.