Finally, A Patients' Bill of Rights?

Today Obama announced what he's calling a patients' bill of rights. I've yet to see the "bill" but suspect that it regulates insurers' practices. From everything I'm reading, the details are still shaking out, but I doubt that it will become the bill of rights I've been advocating for: one that guarantees non-discriminatory health care delivery to all citizens regardless of age, race, sex, gender, faith or ability. I doubt it will include strong informed consent laws and mandatory referral laws that prevent providers from refusing services to patients. Perhaps the administration is waiting to tackle the "conscience clauses," most notably Bush's law instituted in December before he left office, and currently on pause since the election.

More news:

http://www.chron.com/disp/story.mpl/ap/top/all/7073988.html

http://content.usatoday.com/communities/theoval/post/2010/06/obama-turns-back-to-health-care/1

http://www.iowapolitics.com/index.iml?Article=200706

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.

Who Speaks for the Catholic Church?

Hugh McNichol argues that all those organizations out there tacking "Catholic" onto their name are not the true moral voice of the Catholic church. The USCCB is. He notes the CHA and other organizations who endorsed the health care bill despite USCCB and other Catholic opposition. Yet, dissent in any church is not new. Who represents the millions of Catholics in the US, some say, is the millions of Catholics in the US - who are much more liberal on issues of gay marriage, women's rights, use of contraceptives, and yes, abortion.

An excerpt from McNichol's post is below. But what his article fails to note is this: What weight should Catholic theology, whatever theology the church decides on or we as a society choose to mark as "official," have in the laws that provide health care to a pluralistic society?

And does the over-sized participation of Catholic organizations (hospitals, long term and hospice facilities, HMOs) immediately determine that they have a right to discriminate against the multi-faith society they serve?

However, during the process of due diligence the Catholic Health Association endorsed the proposed legislation despite the reservations and the lack of approval of the United States Catholic Conference of Bishops. Additionally other groups of women religious, such as the Leadership Conference of Women Religious, endorsed the legislative package and clearly endorsed its ratification.

The question needs to be asked; are these organizations accurately reflective of the authentic teachings of the Catholic Church? For the most part the use of the term, “Catholic,” in the organizations title provides a somewhat tacit seal of approval which implies adherence to authentic Catholic teachings as proclaimed by the Magisterium of the Catholic Church.

However, such an application of the adjective, “Catholic,” does not always hold true to the organizations purposes and objectives. The Catholic Health Association for example is an organization that offers a loosely held confederation of health facilities that were formerly initiated and managed by religious communities. While the facilities operate under a general charter that embraces the “Spirit of Catholicism”, there is nothing in their charter that makes them answerable to the United States Catholic Conference of Bishops as it relates to their operating policies and procedures. In effect, the CHA is actually a trade organization that represents the interests of health care organizations that were formerly run by religious communities of priests or religious.

The president of Catholic Health Association was present for the public signing of the health care legislation into law at the White House this week. Sister Carol Keehan, DC. Sister Carol Keehan is a member of the religious group, Daughters of Charity. She has indeed lobbied for many years for the passage of a universal health care package that safeguarded all American citizens, especially the rights of the poor and challenged groups in American society. Sister Keehan for years has worked in the health care field and has even been recognized for her achievements by secular organizations and even Pope Benedict XVI in bestowing the papal honor, Pro Ecclesia et Pontifice (For Church and Pope) Award. However, despite her personal achievements, the implied approval of the entire legislative package, now federal law placed the Catholic Health Association in direct contradiction and de facto in opposition with the American Catholic Bishops.

Understandably no legislation is perfect and there are many imperfections in the Obama Health Care package. The fact remains there can only be one unified voice that represents the United States Catholic Church and that responsibility resides with the American Catholic Bishops. While the American Bishops have worked consistently towards the goal of a universal health plan for all Americans with concessions made for Catholic beliefs, their voice was in fact not loud or strong enough to curtail other groups such as the Catholic Health Association or The Leadership Conference of Women Religious from usurping the mantle that rightly belongs to the United States Catholic Conference of Bishops.

Forced Feedings: The Bishops and Artificial Nutrition and Hydration.

Judith Graham at the Seattle Times has a great article today on the Catholic Bishops' latest dictatorial health care guideline - that the church decides when patients are removed from (or added to) artificial nutrition and hydration, not the patients. Graham writes:

The new directive, more definitive than previous church teachings, also appears to apply broadly to any patient with a chronic illness who has lost the ability to eat or drink, including victims of strokes and people with advanced dementia.

Catholic medical institutions are bound to honor the bishops' directive, issued late last year, as they do church teachings on abortion and birth control. Officials are weighing how to interpret the guideline in various circumstances.

What happens, for example, if a patient's advance directive, which expresses that individual's end-of-life wishes, conflicts with a Catholic medical center's religious obligations?

Gaetjens, 65, said she did not know of the bishops' position until recently and finds it difficult to accept.

"It seems very authoritarian," said the Evanston, Ill., resident. "I believe people's autonomy to make decisions about their own health care should be respected."

Part of the reason the Catholic church gets away with making these decisions for patients is because so few know how Catholic health care is regulated, by the church. About the history of this new policy on artificial nutrition and hydration, the case of Terri Schiavo is cited, an event that I would say is one of the primary roots of the church's recent restrictions:

The guideline addresses the cases of people such as Terri Schiavo, a Catholic woman who lived for 15 years in a persistent vegetative state, without consciousness of her surroundings. In a case that inspired a national uproar, Schiavo died five years ago, after her husband won a court battle to have her feeding tube removed over the objections of her parents.

The directive's goal is to respect human life, but some bioethicists are skeptical.

"I think many [people] will have difficulty understanding how prolonging the life of someone in a persistent or permanent vegetative state respects the patient's dignity," said Dr. Joel Frader, head of academic pediatrics at Children's Memorial Hospital in Chicago and professor of medical humanities at Northwestern University.

snip

The church's view is that giving food and water through a feeding tube is not a medical intervention but basic care, akin to keeping the patient clean and turned to prevent bedsores, he said.

Pope John Paul II articulated the principle in a 2004 speech, and the Congregation for the Doctrine of the Faith, an arm of the Vatican, expanded on it in a 2007 statement.

The new guideline incorporates those positions in Directive 58 of the U.S. bishops' Ethical and Religious Directives for Catholic Health Care Services.

There are several important exceptions. For one, if a person is actively dying of an underlying medical condition, such as advanced diabetes or cancer, inserting a feeding tube is not required.

"When a patient is drawing close to death from an underlying progressive and fatal condition, sometimes measures that provide artificial nutrition and hydration become excessively burdensome," said Erica Laethem, a director of clinical ethics at Resurrection Health Care, Chicago's largest Catholic health-care system.

A second exception has to do with bodily discomfort. If infection develops repeatedly at the site of the feeding tube, for instance, artificial nutrition and hydration can be refused or discontinued, Catholic ethicists agree.

A third exception is allowed when inserting or maintaining a feeding tube becomes "excessively burdensome" for a patient.

Under traditional Catholic teachings, patients may refuse medical interventions when anticipated burdens outweigh potential benefits.

"Decisions are made case by case," and that will continue, said Ron Hamel, senior director of ethics at the Catholic Health Association of the United States.

Of particular concern is whether Catholic medical centers will honor an advance directive stating broadly that a person does not want a feeding tube inserted.

Compassion & Choices, a group that supports the right of dying people to end their lives, suggested the potential for conflict is significant.

"Now, [Catholic] hospitals and nursing homes have no choice but to enforce Catholic doctrine universally over patient wishes," the group's president, Barbara Coombs Lee, wrote on her blog.

But most ethicists said they do not see a significant problem. Disagreements, they say, usually can be resolved by discussing people's end-of-life concerns, such as fear of being abandoned, fear of living in pain or fear of becoming entirely dependent on others.

It is rare for people to be very specific about their wishes.

"I have never seen an advance directive that says, 'If I am in a persistent vegetative state, I ask that you withdraw food and water,' " Laethem said.

The bishops' guidelines specify that patients' "advance directives are to be followed, so long as they do not contradict Catholic teachings," said John Haas, president of the National Catholic Bioethics Center. How those teachings will be interpreted has yet to be resolved.

Jill Stanek and Not Dead Yet Shake Their Fingers At Me, I Respond.

I don't take the same glory from having my "opponents" shout me down that Jill Stanek does - don't we have too many social issues to solve to fan distracting flames? - but I am intrigued to find that two prominent "pro-life" voices have recently maligned me for as benign and obvious a point as:

Culture wars focus public attention on one prominent, contentious, emotional issue (like assisted suicide or abortion) to the detriment of other very important health issues like women's health care and elder care. This is the gist of an article I wrote at AlterNet this week. You can read it here.

Yesterday, Stanek herself took the time to blog her poke at me:

Pro-abort Ann Neumann at Alternet is tying the fight to legalize euthanasia and assisted suicide in the UK to the fight to advance abortion rights in the US. Of course. The common denominator: Death, death, death.

My God is My Credential.

The common denominator is, of course, not "death, death, death" but the highly publicized efforts of folks like Stanek to focus not only on diminishing and discrediting women's rights but also those of elders. Pro-life groups have for the past few years worked hard to raise "euthanasia" on their platform. Terri Schiavo's brother, Bobby Schindler, spoke at the "pro-life" march a few weeks ago. "Right to life" groups are supporting elder rights-infringing legislation all over the country. The Catholic Church and Fundamentalists jointly have gone after women's and elder's health care autonomy. Stanek's own site regularly attacks end of life care choice. That the "pro-life" movement is working to determine the rights of the vulnerable and dying as their own domain is no secret, certainly not one that I'm exposing.

That anyone who believes in women's rights or elders' rights is pro-death is ludicrous, a line of irrational thinking that requires precisely the closed arguments that I say culture wars require. But that doesn't stop "pro-life" groups from trying to paint as pure evil those who don't abide by their fundamentalist attempts to impose denominational health care on the rest of the country. They've framed the debate for so long that they've begun to sound silly if you step back and look with any shred of critical thought at the issues.

That a woman loses her rights (to the state, or to the fetus, or, well, to Jill Stanek) when she becomes pregnant is religious idealization of a potentiality - a future human being. It is the same kind of religious ideology that is behind the "personhood" bills across the country that work to further limit women's access to medically-sound, legal health care. And the same imposition that allows these groups to damage the rights of patients at the end of their life. You know, "cradle to grave," "whole cloth," "sanctity of life" stuff that gives the self-righteous license to meddle in your health care decisions.

I am far from pure evil; I just happen to think that women and elders, not Jill Stanek, should make their own health care decisions. But Stanek's easy to write off as absurd and fanatical. Women's rights advocates and rational Americans have been doing it for years. But luck with those "credentials" Jill.

Don't Go Near Disability Rights.

The comment from yesterday that caught my interest the most came from the "anti-euthanasia" disability group with the catchiest name ever, Not Dead Yet. They write at their site:

Anyway, if you're here and you're reading this - it's obvious who she left out. Disability advocates and activists - in the US and the UK - oppose legalization of euthanasia and assisted suicide. The "practical" issues she and Beresford refer to are exactly the economic, social and support factors that disability advocates constantly bring up as being central to any discussion of assisted suicide and euthanasia.

And Neumann already knows this - or she should. She found her way to Bill Peace's Bad Cripple blog last month, but shied away from engaging from the critique of her initial attacks on what she termed "slippery slope" arguments on the blog. Not long after that, she announced the news of the Disability and Health Journal Issue on Assisted Suicide on her own blog.

So she knows that disability activists and advocates are out there, talking about the "practical" things. The trouble is, we think legalization of assisted suicide and euthanasia is bad policy.

In other words, she's fostering and promoting the very polarization that she bemoans. Maybe it's because she really isn't sorry that assisted suicide is seen as a "culture wars" issue after all.

Minus the dismissive, snarky tone, NDY is right. I have been aware of their "anti-euthanasia" efforts for some time. And they are absolutely right that I have avoided them, to some extent. But I'll get to the reasons in a minute. As to the "polarization" I am fostering, I suspect they mean my disclusion of disability rights groups from the patients' rights alliance (that doesn't really exist but that I fantasize about often).

Nothing can be farther from the truth. But I hope to have a new article out in a few days that dispel that accusation. I just don't think that NDY represents and speaks for all disabled persons and I know that not all disabled persons are anti-aid in dying (or anti-patients' rights or anti-women's rights). And as to my joy in any assisted suicide culture war? I'll let my readers discern how engaged I am with hospice and palliative care, health care reform, and elders' rights.

As to the provision of rights to one group infringing on the rights of another, that's just bad thinking too. Giving a mentally-sound, terminal patient with less than six the right to a lethal prescription that they may or may not choose to take when death approaches has nothing to do with the disabled community. Again, I sympathize with the fear and vulnerability the disabled community feels toward the medical industry, the state, and society. But conflating two separate issues is just bad advocacy. With a little (understandable) paranoia thrown in.

NDY continues:

She's wrong about that DMZ - we live in it. And neither the pro-euthanasia activists nor the highly political "pro-life" organizations want to acknowledge our place in the debate, because we'd distract from their Culture War. Neither side really sees people with disabilities as having a place in their respective cultures, so it's easy to marginalize us - and both sides do it with abandon and ease.

In some ways, this paragraph is also true. We don't have a patients' bill of rights in the U.S. because the various, disparate groups concerned have failed to build a coalition that is strong enough to rival that of the Religious Right. I have written that were women's rights, elders' rights, gay rights, medical marijuana rights, and disability rights activists to get together, they could resoundingly oppose denominational health care delivery in this country, the religious laws that are daily pushed in our state and federal legislatures, the biased court decisions that limit time and again a patients' rights.

However, Not Dead Yet isn't working for patients' rights, though the try to claim that mantle. They're working to prevent others from making their own health care decisions at the end of life. Yet they try to present themselves as free of political motivations. Incredibly disingenuous.

Founded in the 90's after Jack Kevorkian was acquitted, the group has worked to support the Schindler family in their fight to keep Terri Schiavo on artificial nutrition and hydration and to oppose aid in dying legislation everywhere.

Their argument can be summed up thusly: assisted suicide (or "euthanasia"), when legalized, forces already-marginalized people with disabilities to be coerced into ending their lives prematurely. By matter of their inherent vulnerability, the disabled are the first in society to be offered up by the state, the medical profession or society as not worthy of full protection. Making aid in dying legal devalues the disabled in society and jeopardizes their rights.

While also an argument dispelled with fact and statistics, it is never an easy position for a liberal rights proponent like myself to go against "the disabled." And to be perfectly clear, my position on patients's rights in no way infringes on the rights of the disabled. In any way.

Because of the way Not Dead Yet and other "disability rights" groups have positioned themselves, if you disagree with them by, say, supporting legalized aid in dying (as legislated as Death with Dignity in Oregon and Washing, like I do), you're out to kill the disabled. It's the same "with us or against us" stuff that pushes politicians into bad legislation and media commenters into squirming discomfort. Come out against a position taken by a disability rights group? No way, no thank you. To explain one's position against an "anti-euthanasia" disability group takes more than a glib sound-bite. And who has time for nuance in politics these days?

Rhetorically, Not Dead Yet and other such "anti-euthanasia" groups have sprung their argument like a trap. Because they are the most vulnerable, they've taken up the mantle for speaking for us all. And because all of us will be disabled at some point in life, either from frailty in old age or other health situations that impair what we consider our current "normal" functionality, we can anticipate oncoming disability. But we can't know what it's going to be like. I accept and acknowledge that as much as I do the fact that as a white woman I don't know what racial discrimination feels like. But that can't stop me from working to abolish racism.

I too accept that disabled persons have fear of the medical profession and of society's disdain for their physical and mental challenges. And I resoundingly admit that these fears have historical and contemporary relevancy. But I refuse to accept that my advocacy for patients' rights and end of life choice in any way diminishes the rights of the disabled.

So yes. Not Dead Yet is right that I don't often pursue disability rights issues. I write about end of life care and religion. But as I continue to press for a patients' rights coalition that will push back draconian and discriminatory care, I will have to better articulate disability rights activists into this alliance. I just don't think of Not Dead Yet as a disability rights group interested in patients' rights.

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.

Lifenews Discredits Palliative Care.

Lifenews published an irresponsible and misleading article yesterday by writer Mary Ann Kreitzer that uses friend-of-a-friend conjecture and emotion to discredit palliative care. Like Bill Frist diagnosed Terri Schiavo by video, Kreitzer uses a telephone conversation to determine that her friend's father was "killed" by palliative care.

Irresponsible: because millions of elders are now facing end of life care and planning and require fact-based, scientific, medically sound advice on what their options are for their dying and death. This article plays on fear of death, the taboo of discussing end of life choices, and religious convictions to damage patients' understanding. It is a horrible disservice to seniors.

Misleading: In short she gets all the facts wrong simply because she is not medically trained, is not intimate with the medical facts of the man's death, does not understand that dementia and alzheimers not only damage the mind but the body, has little knowledge of what palliative sedation is, and in short, contributes to fears that elders already have about end of life issues.

I wish we could say that this type of egregious misinformation and fear-mongering was rare, but unfortunately it's not. While 75% of elders say they would like to die at home, 80% die in health facilities, often without any control over their end of life decisions, financial arrangements, or knowledge of patients' rights. Over the past thirty years, the sort of work that Kreitzer is doing with this post has reduced elders to victims, not in control of their end of life decisions or care. Kreitzer demeans the autonomy of elders by reducing their agency in their own health care decisions.

But there's something else at work in this piece: grief is a complicated and nuanced emotional process that, when stymied by blame and anger, however unjust, can damage the grieving of those who have lost a loved one. Kreitzer's damage is not only to those seniors who must face the dying process without guidance and accurate information but to the loved ones who in the wake of death are faced with the work of their own grief.

By using only the barest outline of a man's death, Kreitzer makes the case that the nebulous "culture of death" is out to kill our vulnerable seniors. Nothing could be farther from the truth. Only accurate information, medically sound decisions, advanced planning, and acceptance of impending death will empower our seniors to die the way they want to. Kreitzer deserves grave criticism for working to distort our human right to a good death.

From Lifenews:

I spoke to a friend this morning whose father was murdered by terminal sedation (aka "palliative" care). Her father suffered from Alzheimer's and his mind was pretty well gone, but physically he was in great shape.

He and his wife lived with one of my friend's children who took him for a long walk every day and knew how to manage all his grandfather's moods. They were good buddies. My friend lived nearby and spent as much time as possible visiting her parents and enjoying her father's company.

But the rest of the family (including my friend's mother who had power of attorney) decided to put him in a nursing home where he was difficult to control because he wanted to be released. My friend told me that every time she went to visit him he was trying to escape -- pulling at every door and even the bookcases looking for a way out. Three nursing homes and several months later he pretty much gave up.

When she went to see him he would be sitting in a wheelchair slumped over and drooling. He got an infection and ended up in a hospital "palliative" ward where he was denied food, water, and antibiotics. Within several months, he went from an elderly man who was walking two miles a day with his grandson, to dead from dehydration and terminal sedation. It was Terri Schiavo and Hugh Finn without the publicity.

My friend considered trying to get guardianship at one point, but she was familiar with the earlier cases and knew it would be a lengthy legal battle and the result would be the same. He had also deteriorated so much she didn't think he could recover. With a number of young children still at home, she didn't think she could deal with the fight. So here was a faithful daughter (and her husband) willing to care for both her parents until they died, who had to watch while her faithless siblings and her mom murdered her father.

Welcome to the realities of the culture of death.

Terminal sedation is abortion for the elderly. You have dementia and get pneumonia? Like Rahm Emmanuel says, Never let a crisis go to waste. See it as an opportunity for a quick exit. No antibiotics and terminal sedation. Abortion completed. Your loved one is healthy but brain damaged like Terri Schiavo and Hugh Finn? No problem. Starvation, dehydration, and terminal sedation. Call it late-term abortion.

You think I'm exaggerating? The New York Times ran an article on December 27, 2009 on the practice. It is common in hospice programs. Hurry the patients along for the peace of the family and to empty the bed. Saves everyone anxiety, money, and hassle. Except, perhaps, the patient. But he is drugged so whatever objections he may have had, you'll never have to hear them.

Sometimes, as in my friend's case, though, things aren't that smooth. Far from bringing peace to families it brings terminal strife and family breakdown. And in the case of my friend's mom, will children who killed their father, hesitate at doing the same thing to the their complicit mother? After all, she had no objections to killing dad; so how can she object to her own quick exit? It's for the children (and their inheritance?).

I wish I could say this is the only case I know of the deliberate murder of elderly parents, but it isn't. It's common practice in some hospices with or without the complicity of the families. Situations like my friend's are also becoming more and more common as the baby boomers, who often gave their children nothing in the way of faith, face the results of their hedonistic lives. "Hey, Mom put me in day care for most of my childhood and aborted my siblings; I'll put her in a nursing home and pull the plug as soon as possible." So much easier for everyone.

The worst part, however, is that while the body is being killed, the souls of the killers are dying as well. How does God who said, "Honor your father and your mother," look at the deliberate murder of parents? It is mortally sinful! And that's the greatest suffering for my friend. She would like to see her family in heaven, but fears that this life on earth may be the only common ground they ever share.

Please pray for all those in danger of death today from terminal sedation and for those who will carry it out and enable it. It's a soul-killer for sure! You can call it quick and painless, but in the end the palliative care ward, like the abortion mill, is literally hell on earth.

Hyde, Church, Coats, Weldon, "Conscience Clauses" All Unconstitutional?

Many have been critical since 1973 of the grounds of the Supreme Court's decision on Roe v. Wade.

The battles over abortion language in the health care bill have reawakened criticism of the courts for neglecting to determine that opposition to abortion - and other women's reproductive services - is religious in nature.

(I would extend the court's neglect to other patients' rights issues including end of life rights, and LGBT rights as violated by Catholic health care's protection by provider refusal laws (so-called conscience clauses) that allow doctrinal medicine to be delivered to the general public despite public funding of such facilities.)

A new paper by Justin S. Murray, a Georgetown University law professor, looks at the court's avoidance of direct Establishment Clause grounds for such decisions but works to prove that a secular case can still be made for opposition to abortion. He writes, "...I aim to prove the more modest proposition that a strong enough case can be made for restricting abortion, based solely on secular reasons, to satisfy the demands of the Establishment Clause."

This is the gold mine for opponents to abortion! Prove abortion should not be legal on secular grounds and - wallah! - the court's long-established and questionable skirting of the Establishment clause is excused. He even establishes what he calls the "underground Establishment Clause," noted with it's own acronym, UEC. It's a slight of hand: prove that Roe v Wade and other rulings are based on Establishment Clause principles and you remove any defense of subsequent laws that address women's rights to secular health care. It's almost equivalent to saying that you're not racist because you have black friends.

This is no new hat trick by opponents of abortion, and gets at one of my great concerns: the cultivation of religious legal, medical and political intellectuals by the Religious Right to oppose liberal or progressive intellectuals, all the while denying legitimacy to intellectual thought. The growing prevalence of religious education, both primary and university level, the increase of religious legal and medical associations, the dominance of religious think tanks and foundations all work to undermine secular "intellectual" society by claiming "common man" status. The perfect example is Wesley J. Smith, a senior fellow at the Discovery Institute - an organization which promotes intelligent design and "pro-life" principles while keeping "God talk" on the down-low. Same-sex marriage is refuted as "untraditional" or "unnatural." Legal abortion is not a violation of a woman's bodily autonomy and right to conscience but the state's "ethical" protection of an unborn citizen.

The slow secularization of society has not prevented these quietly religious organizations from influencing public policy on a grand and destructive level: witness the "faith-based" initiatives neatly woven in to the delivery of social services by the federal government by Bush - and maintained by Obama.

The Hyde Amendment, the Church Amendment, the Coats Amendment, the Weldon Amendment, and the Bush "conscience clause" are all reliant on contrived use or avoidance of the Establishment Clause. Yet, clearly the motivation/justification for them is religious in nature. In other words, the Establishment clause "protection" of religious actors - nurses, doctors, pharmacists and entire institutions like Catholic health care- is one-sided. Provider refusal of common secular medical services has been established according to the Establishment clause with no concern for patient's rights, conscience, or needs. One conscience and ideology protected to the detriment of another's. And to the detriment of a society that is still left to fight poverty, unplanned pregnancies, class segregation, and discrimination. The power over one's body has been, for religious reasons, put into the hands of those with authority and religious motivations. This empowerment of religious forces corrupts social justice on a grand scale because it favors one ideology over all others - and denies patients the right to their own health decisions.

As feminists now focus, in the wake of health care bill battles, on the overturning of Hyde, they would be wise to push for a reexamination of such amendments on Establishment clause grounds, as opponents of Proposition 8 in California are doing. How the courts respond is another issue that will only remain in question so long as society buys into these covert efforts to secularize or mask religious ideologies in law and ethics.

Constitutional lawyers like Marci Hamilton have made a strong case for the unconstitutionality of the Stupak Amendment and as Frances Kissling, former president of Catholics for Choices, has noted, Hyde has been unjustly accepted by feminists as a compromise on "common ground" in the abortion fight despite it's systematic discrimination against poor, minority women. This renewed focus on the quality and grounds of such rulings could signal a new move toward non-discriminatory health care laws. But it requires that patients' rights advocates reframe stealth religiosity out of the issue.

Until the courts - both state and federal - are forced to address the issue of religiously influenced medicine for women, gays, and elders, we will be left with laws that blatantly discriminate against minorities in direct violation of the Constitution.

You can download the paper here.

The abstract from Family Law Prof Blog:

Murray: "Exposing the Underground Establishment Clause in the Supreme Court’s Abortion Cases"

Justin S. Murray (Georgetown University Law Center) has posted Exposing the Underground Establishment Clause in the Supreme Court’s Abortion Cases on SSRN. Here is the abstract:

In Roe v. Wade, the Supreme Court held that women have a constitutional right to abortion based on the Due Process Clause. To arrive at this conclusion, the Court implicitly relied on concepts that properly belong to the Establishment Clause - in particular, the Establishment Clause requirement that all laws must be supported by secular purposes, not religious ones. This Article is the first attempt to describe and critically evaluate the Court’s use of Establishment Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to grasp the structure and significance of the underlying Establishment Clause dynamic of Roe. The Due Process Clause allows the government to restrict fundamental constitutional liberties (such as abortion) if it has a compelling reason for doing so. States have defended their abortion laws by arguing that protecting unborn human life against homicide is a compelling reason to restrict abortion. This argument, advanced in Roe, directly presented the Supreme Court with the question of whether fetuses are human beings entitled to protection against homicide.

The Court, however, refused to answer the question and provided a convoluted, ambiguous explanation for its refusal. Careful interpretation of these ambiguous passages reveals the Court’s underlying concern that neither the judiciary nor the legislature may decide the question of fetal humanity because it is a controversial religious question. When the Court’s rationale is clarified and plainly stated in this way, it becomes clear that Roe’s method of analysis - rejecting the state’s interest not because it is false or unimportant, but because it is religious and therefore an inappropriate basis for political judgment - is identical to the Establishment Clause requirement that legislation must be based on a secular purpose.

However, the Court’s analysis is problematic, because Establishment Clause principles are consistent with governmental protection of fetal life. The humanity of the fetus can be plausibly supported, not only on religious grounds, but also on the secular grounds of philosophical, historical, and experiential reasoning. To be clear, I do not argue that these secular grounds prove beyond dispute that fetuses are human beings. Instead, I defend the more modest proposition that a debatable secular case can be made for viewing fetuses as human beings. This conclusion is not strong enough to justify criminalization or restriction of abortion (which is beyond the scope of this Article), but it does prove that such criminalization or restriction would not violate the Establishment Clause. Thus, the Court should revisit the fundamental question that it evaded in Roe and later cases: is the fetus a human being, such that legislatures have a compelling interest in protecting fetal life against abortion?