Provider Refusal of Futile Care.

Thaddeus Pope has an intriguing post at his blog today about what can be termed the undermining of doctors' refusal of care. He cites a recent article by Christopher M. O'Connor, associate legal council for Lancaster General Hospital (where I was born), in the recent Journal of Lancaster General Hospital. The article is titled, "Can the Health Care System Ever Say No?" and addresses the lack of clear guidelines and protections for physicians who wish to end care that is not beneficial.

I have written passionately about the problems of provider refusals (so called conscience clauses) that often allow a provider -- a doctor, a denominational institution, pharmacists, etc. -- to deny services that they are morally, ethically, and most often religiously, opposed to. Twenty percent of Americans are treated in Catholic hospitals, for instance, where they are denied medical services that the Catholic Church opposes. These guidelines discriminate against women predominantly regarding reproductive services, but also against gays and the elderly. I strongly oppose this type of discrimination and see it as a violation of patients' rights.

But Connor comes at it from another angle. What about doctors who are, by emotional family members or fearful terminal patients, asked to provide care that will not prolong life? Doesn't the provider refusal law protect them from perpetuating the suffering of patients?

Jessica Mitford wrote in her 1963 bestselling expose of the funeral industry, "The American Way of Dying," that most of us are coerced into buying services and products for our deceased loved ones because we are uneducated consumers, distraught with the emotions that surround death, pressured by cultural forces that dictate a contrived form of propriety, and forced to be consumers of an industry that we know very little about.

The health care industry is not unlike the funeral industry in that we know little about it as consumers until we are forced to make use of it, often under great distress. As death and illness have become more and more institutionalized, taking place primarily outside the home, our culture has become less and less versed in how death occurs, how the medical industry operates, what choices we have in cases of terminal illness. And too, medical technology has created more choices and options, making that removed industry even harder to understand easily. We are uninformed consumers, in other words, lost, when forced to enter into the health care system, in the complications of it all. And the emotion of it all. The responsibility of making decisions is a terrible weight for the ill and their family members. Doctors are looked to as paternal, autoritarian advisors, the ones who know everything and can make the best decisions for us.

This can be detrimental in the case of a young woman who has been raped and happens to enter a Catholic hospital where state laws don't require that the emergency room workers where she is treated inform her of the existence of emergency contraception. Lives are ruined in these instances. But the other side that Connor reminds me of this morning, is when a doctor has to say to an unknowing and distraught loved one that a Do Not Resuscitate order is the very best for their loved one, a path that will cause the least amount of suffering.

In a culture where denial of death is championed, where suffering is glorified, where patients are faulted for "giving up" if they go into hospice, where fighting against death and illness is termed as a battle that requires great strength against all odds, how can we educate emotional family members and patients about how to die? And how do we equip well-intentioned doctors to not only communicate impending death but to make legal decisions about ending futile care? I don't have concrete answers. And obviously neither does the medical industry. Certainly the answers aren't to be found in the cultural stories that we are bombarded with daily by all sorts of media.

I have a hospice patient right now who is having a difficult time understanding that he is terminal. His family members and friends keep sending him cards that say "get well soon." The facility's church group come to pray for a cure for him and tell him that no miracle is too impossible for God. We had a very difficult time finding an effective pain management regiment because he was ashamed to tell the nurses when he was in pain, intimidated by their authority, and unsure of what was happening to him. He failed to understand that there is life between full function and death and that the period of disability he is entering has value -- because like the rest of us he just didn't know. He doesn't know what's coming and he has no reference to the experience in his prior 65 years. He looks to the nurses and doctors for direction; they look to him for decisions -- neither fully able to discuss the matter frankly.

Patients will only be able to make informed medical decisions when they are informed consumers. Unfortunately, so many factors impede proper informed consent. Yet I fear that strengthening provider refusals improperly limits patients' rights, taking the most important decisions out of the hands of those lives directly affected. There's nothing like informed, patient, incremental conversation to prepare a patient for what is ahead. Until doctors and society are willing and able to have those conversations, we will struggle to keep decision-making in the right hands: the patient's.

The post:

His conclusion: "Recent legal decisions have not necessarily prohibited the health care system from refusing to provide care, but they have questioned, and perhaps narrowed, the circumstances in which the medical community can refuse to provide care it believes is both ethically and medically inappropriate."

In a section titled "unsettled legal foundation," O'Connor writes: "Courts have recognized that physicians cannot be forced to provide care that is not beneficial. However, they have failed to announce concrete standards or consistent principles to guide the medical community to resolve disputes between it and patients (and their families)."

O'Connor, actually goes beyond making the point that the law is unsettled ans suggests that it is getting even less provider friendly. Citing the March 2009 Betancourt opinion, he writes that "Although courts, and in some cases, state legislatures, have shown a willingness to recognize circumstances in which the health care system can refuse to continue care that is not beneficial, recent events indicate that the tide may be turning."

Doctors' Dilemma: Denominational Hospitals.

Tom Rees writes at Epiphenom about the challenge faced by doctors who work at denominational hospitals -- about 1 in every 8 -- in the U.S. Rees highlights a recent study that polled doctors on how they handled religious restrictions to medical services delivery. About 1 in 5 doctors reported having some conflict with the laws of their employing institution. So much for the sanctity of the doctor-patient relationship, huh? Here's a clip:

So, for example, some religious hospitals stop their doctors from providing legal medical treatment, such as contraception, abortion, and certain end-of-life treatment options.

This poses a potential dilemma for healthcare providers. A recent survey, by Debra Stulberg, at the University of Chicago, and colleagues, set out to investigate.

They surveyed over 400 doctors, chosen at random [technical note: this wasn't a completely random sample. To make it statistically robust, they specifically set out to get more doctors with South Asian or Arabic surnames, and they adjusted the results to take this into account].

Just over 40% had worked at one time in a religious hospital. This was pretty evenly spread across age, religious affiliation (or none) and other demographics.

One in five of those who had worked in a religious hospital reported that their treatment decisions had at least sometimes come into conflict with hospital policy. In other words, 20% of doctors in religious hospitals have been prevented from prescribing what they believe to be the best treatment for their patients.

Women were twice as likely as men to have faced this problem (presumably because they are more likely to be dealing with female sexual health). And young doctors were more likely than older ones to have had conflicts with hospital policy.

Although you might expect non-religious doctors to be more likely to have problems with the ethics of religious hospitals, it turns out that they are not alone. As shown in the graph, Muslims and Hindus also had problems (contraception is allowed under Islamic law).

In fact, the differences between faiths were not statistically significant (although this may be because the survey was too small).

What did these doctors do when faced with a conflict? Well, almost without exception they complied with hospital policy and denied treatment to their patients.

Strengthening the Advance Directive.

Thaddeus Pope at Medical Futility blog makes a great point about the president's recent move to strengthen advance directives. And to his post, I add my own point: at institutions where provider refusals (so-called conscience clauses) prevent patients from receiving treatment and information they desire, this effort will have no effect. Like at the 624 Catholic hospitals and hundreds of denomination health care facilities around the country. Pope's post in total:

On Thursday, President Obama directed DHHS to promulgate regulations that would "guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients' representatives otherwise have the right to make informed decisions regarding patients' care."

Now, hospitals already have statutory and common law duties to respect advance directives. Indeed, compliance is already required by the PSDA and regulations pursuant to the PSDA. If the new regulations are to add anything meaningful, perhaps they will mean that DHHS will (after two decades) actually enforce the PSDA.

That would be a great benefit. In contrast, the effect of DHHS regulations on LGBT individuals seems far more limited. Sure, the risk of federal enforcement may chill some hospitals that ignore advance directives appointing LGBT partners. But most LGBT patients do not have advance directives. And LGBT partners are rarely recognized as authorized decision makers under default surrogate statutes. Therefore, since DHHS merely enforces compliance with state decision making law, most LGBT obstacles will remain. The real problem is with state law.

New York State Gets Into the Provider Refusal Act.

From Thaddeus Pope at Medical Futility Blog: two NY bills would not only allow doctors or others to deny legal and prescribed treatments to patients, but to also refuse to refer them to a place where they can get those services:

I just noticed this language in N.Y. A.B. 2935 and S.B. 4898, bills aimed at several types of conscientious objection (from abortion, to contraception, to end-of-life):

WHEN PROVIDING A PERSON WITH ANY FORM OF ASSISTANCE OR INFORMATION RELATING TO LIFE-SUSTAINING MEDICAL TREATMENT IS CONTRARY TO THE CONSCIENCE OR RELIGIOUS BELIEFS OF ANY PERSON, HE OR SHEMAY REFUSE TO PROVIDE SUCH ASSISTANCE OR INFORMATION, OR REFUSE TO REFER A PERSON FOR SUCH ASSISTANCE OR INFORMATION, AND NO PUBLIC OR PRIVATE HUMAN SERVICES OR HEALTH CARE AGENCY, HOSPITAL, PERSON, FIRM, CORPORATION OR ASSOCIATION SHALL DISCRIMINATE AGAINST THE PERSON SO REFUSING TO ACT.

Britain's Pharmacists and the Conscience Clause.

From the BBC, Britain has decided to keep the same provider refusal laws that exist in the US. Pharmacists who morally object to contraception will be able to legally refuse those services. But discussion in Britain is now taking place that will require refusing pharmacists refer patients to other pharmacies or facilities where they can get the prescription their doctor has given them.

Here in the US, the same question looms over pharmacists. Obama rescinded the 11th hour conscience clause made law by Bush in his last month of the presidency. Obama has yet to take up the issue again, despite strong calls for it's inclusion in the health care bill. Here in the US, the argument continues to be framed as one of provider conscience; the rights of patients seldom make it into the discussion, unfortunately. I hope this conversation does take place in the US; patients' rights need to be considered, explained, and debated on a national scale.

From the article:

A revised code of conduct from the new industry regulator will allow staff to opt out of providing items such as the morning-after pill and contraception.

But they may in future have to give customers details of alternative shops.

The National Secular Society wanted the General Pharmaceutical Council to scrap the so-called conscience clause.

The General Pharmaceutical Council (GPhC) is to take over the regulation of pharmacists, pharmacy technicians and the registration of pharmacy premises from the Royal Pharmaceutical Society later this year.

Under its new code, pharmacists with strong religious principles will still be able to continue to refuse to sell or prescribe products if they feel that doing so would contradict their beliefs.

But the GPhC says pharmacists who refuse services could be obliged to tell patients where they can access them and it plans to consult more widely on the issue.

Terry Sanderson, president of the National Secular Society, said he was disappointed by the code.

"This was a perfect opportunity to severely restrict the exercise of this supposed conscience clause which has caused a great deal of embarrassment and inconvenience to people recently.

Repealing the Conscience Clause.

After more than a year of waiting for the Obama administration to address the hideous provider refusal laws that Bush passed in his last weeks of office, 365Gay reports that there may be movement to rescind - at least in part - some of the discriminatory restrictions:

(Washington) The Obama administration is expected this week to begin the process of repealing so-called “provider conscience” regulations that could have been used to discriminate against gays, people with HIV/AIDS, and women seeking abortions.

The regulations, instituted in the last days of the Bush administration, strengthened job protections for doctors and nurses who refuse to provide a medical service over religious beliefs.

Human rights groups say the regulations could impair LGBT patients’ access to care services if interpreted to permit providers to choose patients based upon sexual orientation, gender identity or family structure.

The regulations also threaten women’s access to comprehensive health care by permitting pharmacists to refuse to dispense contraception even when doing so significantly burdens the patient’s access, or to refuse to participate in an emergency abortion even when the woman’s health is at risk.

snip

The Bush administration rule was quickly challenged in federal court by several states and medical organizations. As a candidate, President Barack Obama criticized the regulation and campaign aides promised that if elected, he would review it.

Late last week the White House released a statement saying that Obama supports a “carefully crafted” conscience clause – not Bush’s version.

The administration early this week will publish notice of its intentions, opening a 30-day comment period for advocates on both sides, medical groups and the public.

The administration already held a comment period regarding the laws. I hope that the "carefully crafted" regulations will protect the conscience of all individuals, not just those of health care providers and denominational institutions hell-bent on discriminating agains gays, women, and elders.

"Rationing," "Death Panels," And Other "Pro-Life" Criticisms of Health Care Make a Come Back.

As the health care bill begins to again show sign of life, "pro-life" and anti-reform forces are again raising unfounded concerns about "government-funded abortion," "rationing," "death panels," and "conscience clauses."

Americans United for Life, a Christian group (part of what I call the Legal Right, a collection of "pro-life" "legal" organizations that work to pass religious laws regarding patients' rights) has reposted it's claims against the health care bill.

First, before I go into my debunking of those claims, let me say that I have no great love for this bill as it exists in its many forms. While it may constitute gains for millions of uninsured, it does little to advance the cause for meaningful health care reform unless great changes are made to it. Our health care delivery system, as it exists, is badly broken. This bill will only work as a band-aid on the larger structural problems; it does little to address necessary systemic reform. And it goes a long way to create challenges to that impending reform (changes will have to be made as the system continues to bankrupt us) in the future. Most notably, it damages the cause for meaningful reform by mollifying those who accept that the system is broken but think that government is appropriately addressing the crisis. And it complicates women's access to reproductive rights by compromising women's health needs for the sake of passage. Any support I give this bill is predicated on the un-guaranteed hope that it is a step in the right direction, one that can be expanded on in the very near future.

But back to Americans United for Life. Their claims and my refutations:

Further, the White House proposal dramatically increases funding – by 11 billion dollars – for “community health centers” which will include Planned Parenthood abortion centers. Because the proposal lacks a blanket prohibition on the use of federal funds for abortions, these new funds could be used to directly pay for abortions.

This is a response to Bernie Sanders (Vermont) amendment to the bill that, as Katrina Vanden Heuven explained at The Nation in the second week of December, when it was added:

Without fanfare, the good Senator from Vermont, Bernie Sanders, has continued to work behind the scenes to champion community health centers--something he has done for years (also here). These non-profit, community-based facilities provide primary healthcare, dental care, mental health services, and low-cost prescription drugs on a sliding scale. As amendments were added in recent days to win over the Liebermans and Nelsons of the "greatest [undemocratic]deliberative body" in the world, Sanders made sure that a $10 billion increase in funding for the health centers was included.

"This is not gonna solve all the problems of the world," Senator Sanders told me yesterday. "But expanding access to high quality primary health care, and low-cost prescription drugs, and mental health counseling, and dental care--which is a big issue--this is a very significant step forward. If you walk into a health clinic and you have no insurance at all they will treat you on a sliding scale basis. So, that's affordable healthcare."

AUL's opposition to this sensical amendment is that some of those community centers could be Planned Parenthood Centers, which provide, yes, abortion services, but also other women's reproductive services like birth control, pap smears, exams, treatment for STDs, etc. Laws already exist that prevent Planned Parenthood from using federal funds for abortion services. In other words, AUL is protesting more federal money from being used at PP Centers because in those same centers women are paying for their own abortions. Forget the other needs of women that have been marginalized by our current laws and health care system. The objective is to starve PP out of helping women at all, simply because they perform a legal service (abortion) in their clinics that AUL and others have religious objections to.

I would be very surprised to hear that the Sanders amendment rescinds that segregation of funds at PP centers, but even if it does, "no federal funding for abortion" is a misused and discriminatory term. The Hyde amendment, passed after the legalization of abortion under Roe v. Wade in 1973, only restricts use of Medicaid funds for abortion - not all federal funds. Even as misunderstood and misrepresented by "pro-life" groups, Hyde is basically a discriminatory law that preys on the poorest, most disadvantaged women in our society. If you can pay for an abortion yourself, the bill allows, go ahead. If you can't, you're forced into pregnancy.

First, the amendment provides inadequate conscience protection, because it does not prohibit any government entity or program (federal, state, or local) from discriminating against health care providers that do not want to participate in abortions.

While the current health care bill doesn't include provider refusal laws (so-called "conscience clauses"), other laws at the state and federal level already protect not only doctors and other providers but also institutions (like the 624 Catholic hospitals in the country) from providing abortion (or as with Coats, from teaching abortion at medical schools!) In other words, a web of "conscience" laws allows every denominational health care institution, every provider, doctor, or nurse, from denying you a legal, medically-sound service. And this can be done without informed consent (telling the patient what services are available and allowing the patient to make their decisions according to their own conscience) and without meaning referrals (telling a patient where to get the services they need). The AUL wants to keep the disastrous and discriminatory Bush "conscience clause" in place, the one the Bush administration enacted only weeks before leaving office, that allows virtually anyone in the medical research (lab workers) or delivery network (pharmacists) to deny patients' their right of informed health care decisions and access - without any provision for the patient at all.

Second, the amendment fails to address our concerns that under the Mikulski amendment (already accepted in the underlying bill), the Health Resources and services Administration (HRSA) has the power to require private insurance plans to include abortion coverage under the guise of “preventive care.”

Private health insurance policies already provide abortion services. About 85% of them. Preventing those policies from such coverage when included in the federally subsidized "networks" is a further extension of Hyde's original intent and again applies denominational health care discrimination to a pluralistic society. Restricting such coverage would further restrict access to legal, medically-sound service simply because a segment of society doesn't believe in that service. Poor, minority, or rural-living women would be most hurt by it.

Third, the amendment allows insurance plans that cover abortions to receive government subsidies, which is a radical departure from existing law (which is not allowed under the Hyde Amendment and the Federal Employees Health Benefits Program).

It's not radical, as I explained above. And the Weldon amendment, which in 2005 eliminated coverage of abortion in the health care plans for the Labor, Health and Human Services and Education departments of the U.S. government was itself a radical departure from the Establishment clause that should protect society from government endorsement of religious ideology. To be clear, Hyde and Weldon are both amendments that are renewed each year with the budget for their programs; but "pro-life" groups have made such a fuss about them that, as their language alters annually, they have become more restrictive and the question of their removal has become politically challenging. That doesn't mean that they represent good, non-discriminatory medicine. Again, claims that these laws currently prevent any "federal funding for abortion" are grossly exaggerated. There's no "radical departure" here as AUL claims.

Fourth, while the amendment allows states to “opt out” of allowing private plans that include abortion coverage to participate in their exchanges, this “opt out” provision makes abortion coverage normative. In other words, states will have to act to prevent subsidies from going to plans that cover abortions in their state, turning on its head the traditional federal approach to abortion.

Uh, abortion coverage is normative in the private sector. Though conservative groups largely oppose movement from health care coverage from the private sector to the federal government, they're going to fight tooth and nail to make certain that women's access to services they oppose (abortion, sterilization tubal ligation, condom access, fertility services, STD counseling) are as restricted as possible. Egalitarian health care access, they say is a false concept; health care is a commodity, you get what you pay for.

This new state "opt out" simply gives state legislatures yet another tool to impose denominational health care on a pluralistic society - with one quick action. And as to the dramatic defense of the "traditional federal approach" to abortion, Hyde and Weldon are discrimination, plain and simple. Other forms of discrimination could be - and have been - called "traditional." (See pending court case in California regarding Prop 8 where "tradition" is used to discriminate against gays.)

Fifth, the amendment fails to ensure federal funds will not go to assisted suicide and fails to address concerns that Comparative Effectiveness Research will lead to rationing of essential medical care.

Despite the relatively known aspects of the controversies surrounding the health care bill and women's rights, this last point by AUL is perhaps the most damaging. Their effort (abetted by the medical industry) to include elders in their coalition against health care reform (and this bill particularly) have proven that these groups will prey on society's and elders' fears of death without scruple.

In our current medical system, patients are pushed into ineffective, aggressive, futile care at the end of life by a culture that has turned hospice and palliative care into giving up on life. As Tim Cousounis writes:

Misconceptions about hospice and palliative care have abounded well before the latest efforts to refrom the health care system. How else to explain the persistent and continuing reticence to refer to, and accept hospice services, in most US communities. What's different today is that the skeptics of hospice and palliative medicine are more vitriolic than their predecessors, and their talking points (arguments) are more vivid - "death panels, socialized medicine".

Palliative care, making terminal patients comfortable and relieving their pain in the last months of life, is twisted maliciously into "rationing." Elders are fed unfounded fears of doctors and a preying government that want to kill them, infantilized by a paternalistic church and the medical industry into patients who are unable to make their own decisions. Seniors are uninformed about advance directives, living wills, state laws that could protect them, their options for end of life care. Doctors fail to discuss terminal diagnoses because they don't like doing it or because they aren't paid to do it. Seniors, who say they would like to die at home (80%) end up dying in medical facilities (75%). The government is drained by death-prolonging care in their last months (2/3rds of Medicare goes to the last two months of life). Families are bankrupted, emotionally and physically drained by the suffering inflicted through unnecessary services. And still, elder and terminal patients have no choice in how they die.

As to the egregious funding of assisted suicide AUL claims the bill will facilitate: Death with Dignity is legal in two states: Oregon and Washington. On New Years Eve, a third state, Montana, had their Supreme Court rule that the state constitution does not prohibit aid in dying. Laws already exist that prevent federal funds from being used to promote these services (and aid in dying advocates from using federal funds to promote it). This additional fear, compounded by claims of "rationing" and "death panels" works well for health care reform opponents but has little basis in fact. The costs of Death with Dignity are minimal. Those who use it (some few hundred in Oregon since 1998) tend to be wealthy, educated, and white. The AUL's concerns that federal funds will pay for Death with Dignity are grossly exaggerated.

What Happened to the Conscience Clause?

Amy Sullivan asks today at Time's Swampland what the status is of the conscience clause, that nasty rule that the second Bush rammed through in his final month as president. A year ago, the Obama administration asked around for some opinions on the law that allows practically anyone in the medical field to discriminate against a woman's access to emergency birth control, contraception, or other services that they don't agree with.

The most commonly used scenarios when discussing the clause are these:

A woman walks into her neighborhood pharmacy with a prescription for birth control. The pharmacist looks at the prescription and says: a) we don't fill that, period, b) let me get my colleague to fill that for you, c) there's a pharmacy on the next corner that will fill that for you

Or

A rape victim finds her way to an emergency room where she is treated with a standard rape kit and: a) is not informed of emergency contraception that would prevent her from being impregnated by her attacker, b) is told what emergency contraception is and, after another test, is given the medication (Catholic hospitals will often only give EC if the victim has no chance of getting pregnant) c) is told that another facility will provide her with EC if she wants it but not the one she is in

In the first scenario, the woman may be shamed by the pharmacist, or she may be inconvenienced. Unless there is another person on hand to fill out the prescription, she will be at the mercy of the person behind the counter who has decided what her rights to prescriptions should be.

In the second scenario, the victim, most likely in an emotional and vulnerable state, will have a care-giver decide how able she is to protect herself from an unwanted pregnancy or how inconvenienced she will be to prevent that pregnancy.

Enforcing two medical ethics laws could right these discriminations: the right to informed consent where a patient is told of all legal, medically sound treatments; and the right to meaningful referral which would allow a pharmacist or doctor to deny administering objected services but would also protect the patient from discrimination by giving them an option.

But as it has always gone with abortion, so it goes under the Bush conscience clause with birth control. Medical professionals - and denominational hospitals - have refused to comply with demands for informed consent or referrals, saying that telling someone where to get an abortion is the same as performing the abortion. Telling someone where to get birth control or EC is the same as giving it to them.

Sullivan writes:

I suspect that as with Obama's campaign pledge to repeal the Bush executive order allowing faith-based groups that receive federal funds to discriminate in hiring, the White House quickly learned that some of its allies in the religious community liked the conscience rule and didn't want to see it taken away. So they apparently decided to lay low and hold off on making any changes. What's surprising is that they've gotten away with it so far without vocal protests from the choice community.

She's right. The entire fiasco over abortion in health care came about because the administration has strongly courted religious leaders with anti-choice objectives. And she's right that choice activists have not pushed hard to rescind the conscience clause; they're still recovering from being out-maneuvered by the anti-choice gang this past year.

But Amy Sullivan is wrong about the conscience clause disappearing from the radar since last February. Those working to exclude abortion access from the new health care bill have made the insertion of a Bush-like conscience clause part of their demands. I suspect the Obama administration chose to lay off the subject until the health care bill was passed, allowing for the particular conscience fight to be a separate one.

With health care reform on the lam and choice activists regrouping, I don't expect to hear much about the conscience clause for a while. And that means women will continue to experience discrimination, denial of their health care rights and increasing inconvenience in planning their reproductive futures for some time to come.

Bible Instruction in Tennessee Public Schools.

How can you teach America's history, politics, culture, foreign policy, or economics without addressing the profound influence of religion? You can't. But it's what you teach about religion that matters - not just to the creation of historical record but to the future of the democracy.

What the continuing contest over the meaning of the Establishment Clause and "separation of church and state" proves is that religious tolerance means many things to many people depending on their objective. (Note the Supreme Court's notorious unpredictability when ruling Establishment Clause cases - or even their avoidance of it when addressing, for instance, patients' rights.)

If the objective of religious education is to promote a particular theological viewpoint - to win souls to one's own conception of God - you're infringing on the separation of church and state. If you're looking at the influence of religion with a critical eye, you're representing the appropriate forces that have shaped the nation. The hinge then on properly approaching religion in public schools - and in society - is not far from the concept of informed consent that patients' rights advocates discuss.

Individual autonomy is incumbent on the choices of an informed conscience. So the new news coming out of Tennessee isn't, in and of itself, alarming to me. Yes, religion, the bible as literature, should be taught in schools. Indeed is necessary for a full educational experience. But how religion is approached is a difficult thing to legislate. Only citizens' constant scrutiny protects the very essential provision of religious tolerance.

I say it again and again: those who work to legislate their particular ideological beliefs are essentially undermining their own right to do so. Tolerance doesn't work one way. The citizens of Tennessee are left to assert that tolerance means both for and from.

From the Examiner:

Tennessee has joined several other states and determined how biblical principles can be incorporated into public school curriculum.

According to the National Council on Bible Curriculum in Public Schools, Chief Justice, Warren Berger, notes, “the Constitution does not require complete separation of church and state. It mandates accommodation, not merely tolerance of all religions and forbids hostility toward any.” Although many individuals are under the assumption that permitting Bible teachings in public school environments breaks a law and goes against Constitutional rights, a complete severance of religious studies in public classrooms is not required.

Each school can elect how the new curriculum fits into its programs and teachings accordingly; however, theTennessee Board of Education has an approved curriculum it will provide to schools to act as a guideline for how instructors are to teach the information. Prior to the Board’s decision, each school district in Tennessee was permitted to institute its own Bible courses. The new guidelines indicate that schools must use the pre-approved curriculum.

The new guidelines include which translations of the Bible can be taught as well as the instruction of religious history and literature of the text. The curriculum also covers the continued religious and social implications of the Bible’s messages and morals.

Rape Victims and the Conscience Clause.

Godless Feminist has a post about the motivations of the conscience clause, now legal in a majority of US states, that allows a provider to refuse emergency contraception to rape victims - often without informed consent or even referrals. Some states like Massachusetts have laws that require the administration of EC to rape victims - and Catholic facilities, the second largest of emergency room health care in the US, have staunchly worked to maintain such "conscience clause" denial of a rape victims rights.

One salient point made by GF is that, in the wake of all the "no abortion with my tax dollars" noise, is that Catholic hospitals - indeed most hospitals - serve a pluralistic society and are 50% funded by federal dollars through Medicare and Medicaid. Those who don't want to pay for health care that violates their faith best check their hypocrisy when making this argument.

Here's a clip from the post:

The rights of a hospital, pharmacy, and health care professional should never be allowed to supersede the rights of patients — especially women rape victims. It isn’t the well-being, health, or future life of that health care worker that is at stake. It is the woman rape victim’s.

And every pregnancy is a potential threat to a woman’s health, well-being, and life — including her economic well-being. Anyone from a nurse to a doctor to a pharmacist to a lawmaker or a judge who deprives a woman of the choice to prevent a pregnancy, to end a pregnancy — especially as the result of a rape — should be forced to contribute to the support of every unwillingly pregnant woman and to both mother and child after that fetus becomes a post-born child.

Rape victims who are ER patients should not be made victims again by hospital staff and religious organizations — especially religious hospitals that qualify for tax-exempt 501(3)(c) status for whom the public at large must pick up the shifted tax burden tab.

There is nothing decent, caring, or moral about forcing a physically and emotionally traumatized woman to risk pregnancy or track down an emergency contraception provider. There is nothing moral about stopping a rape victim (or any other woman) from preventing a pregnancy she does not want, or cannot endure.

Rapists do not have a Constitutional right to force a woman to breed for them and ER staff, hospitals, et al, have no Constitutional right to force rape victims to bear their rapist’s progeny.

The Medical Right.

A fantastic article about the medical right, by Kathryn Tucker (wicked smart legal counsel for Compassion & Choices, end of life rights group) at the Journal of Legal Medicine. While her work is on religious imposition on patients' rights at the end of life, her logic and rationale apply directly to women's reproductive rights - indeed to all patients' rights. A quick clip: Medical Right organizations are delving ever more deeply into activism, policy promotion, and politics. They are expanding the range of issues they work on, forming new organizations, and consciously taking front and center roles in media and legal debates. The RCRC Report points out that the Medical Right has created a virtual “shadow medical establishment.” [FN8] Unlike *498 professional societies that represent physicians and other health care providers, medical schools, and teaching hospitals, most of the Medical Right groups are relat- ively unknown because they act outside of the normal channels of medical policy and practice. Evidence of the shadow medical establishment can be found in legislatures, the courts, and obscure profes- sional societies and journals. The goal is to establish an alternative body of medical fact to validate beliefs of the Christian Right and thereby advance its political agenda. Want proof that she strikes a cord? Here's Wesley J. Smith, everyones favorite "pro-life" patriot and Discovery Institute fellow, going wacko over Tucker's article, conscience clauses, informed consent and referrals. I know I've been banging the Establishment drum pretty hard lately but it is the drum that the Religious Right, the Medical Right - and if I may, the Legal Right - fear the most.

Why Did Coakley Lose in Mass?

Coakley ran a bad campaign and she was a bad candidate. But different groups, in the aftermath, will claim a host of other reasons, mainly because they're more interesting narratives:

It's a referendum on the Obama administration.

The country said no to health care reform.

Coakley's comment on the conscience clause sank her.

Most all of this is bunk. Coakley was a bad candidate from Western Mass who alienated the rest of the state's democratic machine organizers. Brown campaigned like he wanted the job, Coakley didn't.

It's not like Democrats were doing much with their 60 super majority anyway. Just saying.

Is It Legal? Catholic Mandate for Patient Care.

Bob Egelko at the San Francisco Chronicle has an article today that gets most things right.

The article's title, "New Catholic Mandate on Comatose Patients," is misleading. The mandate, Directive #58, applies not just to comatose patients but to all patients who are deemed by the church in need of the introduction of artificial nutrition and hydration (ANH) or who wish to have ANH removed, whether they be victims of a terminal disease, a tragic accident or old age. The Directive qualifies ANH, applied by a surgical procedure, to be "obligatory" care, regardless of the "do not resuscitate," advance directive or living will desires of the patient.

Egelko asks, "A Legal Conflict?" As we've seen with other patients' rights at Catholic hospitals, particularly women's reproductive rights, the church is shielded by a webwork of laws (provider refusals or so-called "conscience clauses") that allow not only individuals but institutions (even those with tax-exempt status, serving diverse communities and 50% funded by the federal government) to deny patient's their rights by either not informing them of common procedures, not referring them for such procedures, or simply not performing those procedures.

The conscience clause enacted by Bush 13 months ago is up in the air as the Obama administration reviews it. Fierce lobbying by (unregistered, unreported) Christian lobbying groups, such as the USCCB, which has a staff of 350 in Washington, are working around the clock to ensure that their health care entities are not regulated by the federal government - and can subsequently shape health care as they see fit. Beyond segmented patients' advocacy groups for elder and terminal rights, gay rights, and women's rights, there are few powerful entities within society that can stand up to the entrenched, well-funded, and influential medical or Christian lobbies.

Religiously-inspired conscience clauses have been challenged unsuccessfully in the courts but only on privacy grounds, not on Establishment, Equal Protection, or separation of church and state grounds. The courts, including the Supreme Court, have famously shied away from engaging "separation of church and state" arguments with regard to health care. The patients' rights movement has struggled for decades against the powerful medical industry and fundamental Christian forces. As patients' rights stand now, medical institutions and the Catholic Church enjoy much more protection and many more rights than the patient.

The solution that Lori Dangberg of Alliance for Catholic Health Care disingenuously offers is that patients who encounter a conflict with the Catholic institution where they are being cared for can be transferred. But anyone who has experienced the wasting and death of a loved one knows that Coombs Lee is right when she states, "[Patients and families are] very vulnerable to the kind of duress and shame that a policy like this would inflict."

We've seen the church use this tactic before with abortion, sterilization and other "shameful" women's services. Over the past 30 years women have been shamed out of hospitals, become accustomed to traveling for the services they need, or required to comply with the dictates of the Church because they lack the resources to go elsewhere. A network of clinics and independent reproductive service centers has risen up to serve those neglected by the Catholic and other discriminating hospital networks.

The end of life is a trying period for both patient and family. Because few Catholic hospitals readily provide patients with informed consent - and because the general population doesn't understand that Catholic hospitals restrict their care services according to doctrine - many patients and families find themselves in a situation where the advance directive is ignored and death is prolonged or futile care is applied when the patient doesn't want it.

It is nearly impossible for patients and their families to be savvy when they are typically encountering the Catholic medical system - or any medical system - for the first time. Doctors and medical institutions operate from a position of authority and vulnerable and distraught patients and families are often cowed into complying with such authority, against their wishes. For many, this experience of death is their first and they go into it without understanding how we die, what medical procedures are standard or necessary, and what a patients' rights are. Going against hospital policy takes tremendous knowledge and effort when in such a traumatic situation.

I'm tickled to see Egelko's article now. I hope it is a sign that the media is beginning to recognize the current discrimination in health care delivery. And I hope that it raises pressure on the church, the state, and the medical industry to better serve citizens.

The nation's Catholic hospitals, including three in the Bay Area, face a new religious mandate in the new year: to provide life-sustaining food, water and medicine to comatose patients who have no hope of recovery

The U.S. Conference of Catholic Bishops issued the directive Nov. 17 to the more than 1,000 church-affiliated hospitals and nursing homes in the United States and to all Catholic doctors and nurses. Invoking a 2004 speech by Pope John Paul II, the bishops said Catholics must provide nutritional assistance to patients with "presumably irreversible conditions ... who can reasonably be expected to live indefinitely if given such care."

A previous directive let Catholic hospitals and doctors decide whether the burdens on the patient outweighed the benefits of prolonging life. The bishops said the new policy was guided by "Catholic teaching against euthanasia" and by John Paul's observation that providing food and water "always represents a natural means of preserving life, not a medical act."

The directive plunges the bishops into another health care controversy, on the heels of their lobbying for tight restrictions on abortion coverage in health legislation pending in Congress.

Catholic hospital officials say the November decree isn't rigid and leaves room for accommodating patients' wishes. But the bishops' language appears to conflict with a hospital's legal duty to follow a patient's instructions to withdraw life support, as expressed in an advance written directive or by a close relative or friend who knows the patient's intentions.

Courts have ordered hospitals to disconnect feeding tubes when an unconscious patient's wishes were clearly established. The best-known case involved Terri Schiavo, the Florida woman who died in 2005 after 15 years in a coma and unsuccessful attempts by her parents and Republicans in Congress to keep her alive.

A legal conflict?

The bishops' order "fails to respect settled law that empowers patients with the right to refuse or direct the withdrawal of life-prolonging care," said Barbara Coombs Lee, president of Compassion & Choices, which advocates for the right of terminally ill patients to make life-or-death decisions.

"It will apply irrespective of your religious faith, your stated wishes in an advance directive, or the instructions of your family."

That's not how the bishops' decree will be carried out, Catholic hospital organizations insist.

The decree itself does not require life-sustaining care that would be "excessively burdensome for the patient" or would cause "significant physical discomfort." If those exemptions don't apply, a hospital will send a patient elsewhere rather than violate his or her expressed wishes, the organizations said.

"If it was unresolvable ... we would transfer them or find some other means to accommodate them," said Lori Dangberg, spokeswoman for the Alliance of Catholic Health Care, which represents California's 55 Catholic hospitals.

The hospitals include St. Francis and St. Mary's in San Francisco and Sequoia Hospital in Redwood City, all owned by the Catholic Healthcare West chain. Dangberg noted, however, that such situations usually arise in nursing homes and other long-term facilities, rather than in acute-care hospitals.

Ethics considerations

The Catholic Health Association of the United States, which represents both hospitals and nursing homes, said a facility's ethics committee would probably meet with the doctor and the patient's representative to "explore the alternatives" whenever a patient's decision to withdraw life support clashed with Catholic doctrine.

"In some instances, this might include the transfer of the patient to another facility," the association said.

That's not an adequate option, even when non-Catholic health facilities are nearby and available, said Lee, of Compassion & Choices.

"These decisions are hard on the family," she said. "They have to muster their will and their courage to do what they know Mom would want or what the advance directive says.

"They're very vulnerable to the kind of duress and shame that a policy like this would inflict."