Who Makes Your Health Care Decisions?

The provider, apparently. Or your state legislator. Or the local Catholic bishop who oversees services provided by your hospital.

If we consider health care a civil right, a human right -- and that's a big IF; the AMA and other health care organizations have resisted this approach for decades, saying as Rand Paul has recently, that private institutions should not be required to treat blacks, for instance -- then the ability of these entities or individuals to deny services (and informed consent and meaningful referrals) is a violation of those patient rights.

Pew takes a look at the inherent discrimination in provider refusal clauses (so-called "conscience clauses") that allow not only individual providers but institutions to refuse services, information about available, legal services, or meaningful referrals.

Their subject line for the article is an infuriating: "Are Health Care Workers Obligated to Treat Gays and Lesbians?" Now substitute your favorite minority in there, like Women, or Elders or the Disabled? What about Mexicans? Or Blacks? Or maybe Unmarried Women? Or Gun Shot Victims? Or AIDs patients?

Read my May post about conscience clauses.

My feeling is that the intent of conscience clauses may originally have been to protect doctors and health care practitioners from performing services they are religiously opposed to -- I understand the need for conscientious objection, so long as the patient is given proper and legal information and access to those services. But the practice has become hospitals and individuals exerting their moral "teaching" on individuals (a pharmacist lecturing an unmarried woman about extra-marital sex and refusing to fill her birth control prescription). It's part of the mission to reform "ungodly" behaviors like abortion, extramarital sex, gay sex, or oddly, removal from artificial life support. Because Roe v Wade most likely won't be overturned, the effort over the last three decades has been to limit access to reproductive services; this has now spread to other "pro-life" services that are also on the platform.

Here's a clip from the Pew article:

How do the Michigan and California cases differ from cases involving doctors and abortion, or cases involving pharmacists and birth control?

The most important difference centers around the fact that federal and state legislatures have enacted laws granting exemptions for obstetricians and other health care professionals with respect to abortions (and, in a much more limited way, for pharmacists with respect to birth control). The abortion-related legislation reflects the view that people should not be forced to perform an act that they perceive as life-destroying. At the same time, legislatures have not been inclined to exempt health care professionals from laws forbidding discrimination based on characteristics such as race, gender or sexual orientation. Courts might not want to fill this gap and create those exemptions. Courts generally see anti-discrimination laws as serving important social purposes, and they are often concerned that such laws could be undermined by exemptions.

Another important distinction involves the possible extent to which services are withheld. Indeed, there might be a considerable difference, particularly from the government’s perspective, between an obstetrician’s refusal to perform abortions and a therapist’s refusal to counsel a gay man. The obstetrician has not refused to care for an individual or group of people, but only to perform a specific service. By contrast, the therapist’s refusal denies all services to anyone in a same-sex relationship with issues arising from that relationship, even though the therapist remains willing to provide comparable services to those in heterosexual relationships. The therapist’s decision could therefore be seen as undermining the state’s interest in protecting gays and lesbians from discrimination.

What arguments have been made by those who, like the student therapist in the Michigan case, seek moral or religious exemptions?

People who seek these exemptions usually make the following arguments. First, they assert that they are not opposed to serving gay or lesbian clients; rather, they are religiously opposed to aiding or facilitating certain aspects of same-sex relationships. For example, in the EMU case, Ward argued that she did not want to counsel a client with respect to his homosexual relationship but was willing to counsel him about other aspects of his life. Second, they contend that federal or state constitutional protections of religious liberty entitle them to these exemptions. Finally, proponents of such exemptions argue that granting an exemption will cause little or no harm to gay and lesbian clients because equally competent professionals are ordinarily willing to provide the services. Indeed, they say, as long as the number of exemption-seekers is small, and the number of professionals willing to serve such clients is large, the gay and lesbian clients will have adequate service.

Ward explicitly relied on the American Counseling Association’s Code of Ethics in arguing that she should be entitled to refer a client to another counselor in the EMU program if she determines that her personal moral convictions make it impossible for her to work effectively with that client. In the California case, the North Coast Women’s Care Medical Group made a similar argument about referral, though in that case, the referral would have been to a fertility specialist outside the North Coast group, because no one within the group was both willing and qualified to treat Benitez.