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CFFC in the News - 2006

the new standard

'Conscience Clauses' Could Usher Healthcare Crisis

Catherine Komp

29 March 2006

As legal loopholes that allow healthcare providers to refuse to offer services they deem “morally objectionable” crop up around the nation, their breadth and severity grow, raising concerns of broadening impact.

Amid a nationwide debate over giving medical professionals the "right" to refuse to provide care on moral grounds, Michigan lawmakers are considering a bill that would extend so-called "conscience clauses" to health insurers.

Proponents of conscience clauses say they are necessary to protect religious freedom in the workplace and the faith-based identity of religious healthcare institutions. But opponents say that allowing providers to selectively opt out of providing medical care invites discrimination and restricts access to crucial services.

Proposed by State Representative Scott Hummel, the legislation, which passed a house committee earlier this month, would specifically allow healthcare corporations, insurance providers and health-maintenance organizations (HMOs) to "refuse to offer or provide a healthcare benefit on ethical, moral or religious grounds" if those values are stated in the institution's articles of incorporation, bylaws or mission statement.

The legislation joins a host of related proposals in Michigan and other states that would grant similar "right of refusal" to individual doctors, nurses and pharmacists as well as to entire healthcare institutions. Several states have enacted conscience-clause legislation, but so far, none of the Michigan bills has passed into law.

Patients' and reproductive-rights supporters argue that under the protection of conscience clauses, HMOs and insurers could prioritize corporate agendas over patients' rights. Others, including doctors and advocates for lesbian, gay, bisexual and transgender (LGBT) individuals, say the new proposal is written so broadly that it would offer healthcare providers and insurers a way to discriminate against people whose lifestyles they oppose.

"What if an HMO doesn't approve of unmarried pregnant woman?" asked Lois Uttley, executive director of MergerWatch. "Does that mean they can refuse to provide these women with any type of health care on moral grounds? What if the HMO disapproves of gay men who've contracted HIV/AIDS?" Uttley's group formed to help communities fight for reproductive healthcare services when religious healthcare providers take over local secular clinics and hospitals.

"These particular bills that are moving forward in Michigan are very troubling," said Uttley. Noting that under the proposals, insurance companies could deny patients a wide range of services without fear of being sued, she added, "these insurers would be protected from civil and criminal liability for consequences of the refusal."

Representative Hummel told The NewStandard his proposal was a "preemptive measure" to protect healthcare providers from future state mandates that could conflict with their moral and ethical beliefs. For instance, he said, if the state were to pass a law requiring all insurers to cover in vitro fertilization – a process in which a woman's eggs are fertilized outside of the body – his proposal would provide an out to those who believe the practice is immoral. Michigan currently does not have any fertility-coverage mandates, but according to the InterNational Council on Infertility Information Dissemination, about a dozen other states do, including New York, Illinois, Ohio, Montana and Texas.

But Ken Ross, spokesperson for the state's Office of Financial and Insurance Services, called such proposals "a solution in search of a problem," arguing that his agency sees no need for this legislation.

"We're concerned that if there are particular mandates that this legislature or any individual legislator disagrees with, they should come forward with a bill and argue on that mandate if they believe it is an unnecessary or overly burdensome mandate," said Ross.

Instead, Ross said, the framework of bills like Hummel's would allow healthcare corporations or insurers who disagree with any mandated benefit to bypass this deliberative process by simply inserting language into corporate policies enabling them to circumvent state law.

Ross said his office is also concerned that consumers will not know to scrutinize insurers' or HMOs' corporate bylaws or mission statements before choosing a healthcare plan.

TheGay and Lesbian Medical Association (GLMA) said these types of laws can severely curtail access to medical care. GLMA led a nationwide petition campaign in 2004 opposing Michigan's Conscientious Objector Policy Act, a bill that would have let individual physicians and other medical personnel deny treatment based on moral or religious beliefs.

Dr. Kenneth Haller, GLMA board member and assistant professor of pediatrics at St. Louis University School of Medicine, said that once conscience clauses are codified in law, "it becomes the kind of thing that can justify other forms of discrimination further down the line."

Haller added that the fear of possible discrimination could make LGBT individuals less likely to disclose important medical history to doctors or insurers, or could cause them to forgo medical care all together.

But Dave Maluchnik, spokesperson for the Michigan Catholic Conference, the public-policy arm of the Catholic Church, told TNS that non-emergency services "should never be mandated on a faith-based healthcare institution, especially if that non-emergency benefit violates the religious belief that healthcare institution." The Michigan Catholic Conference insures about 13,000 employees and runs healthcare institutions across the state.

Some reproductive-rights advocates, including the Michigan chapter of NARAL Pro-Choice, agree that individual healthcare professionals should be able to opt out of performing health services that they morally oppose, but only if patients can still easily access the services through another provider or institution.

In many communities, however, those choices are increasingly limited because of mergers between religious and secular hospitals. According to a 1999 report from Catholics for a Free Choice, there were 105 such mergers between 1995 and 1998. The report also found that 91 Catholic hospitals in 27 states acted as the sole provider of hospital services in a community, restricting the options for those seeking services such as birth control, emergency contraception, female sterilization, vasectomies and condoms, as well as services for end-of-life care.

Pro-Choice Michigan's executive director, Rebekah Warren, said "these big, blanket conscience clauses really could deny patients access to the medical care that they need, to the information that they need and to referrals that they need."

Warren said that while the issue is complicated, faith-based institutions still have a public responsibility. Especially if they are accepting public money to operate, including Medicare and Medicaid funds, Warren said they should not to be able "to invoke a right of conscience on behalf of their entire institution."

Currently, nine states – including Arkansas, Florida, Colorado, Maine and South Dakota – have laws allowing pharmacists, physicians, and other medical professionals to refuse to dispense contraception based on moral or religious objections. Similar bills are pending in about 20 other states. In addition to Michigan, broader legislation extending refusal clauses to healthcare providers, institutions and payers is pending in Alabama, Missouri, Washington and West Virginia.

This article originally appeared in the 29 March 2006 edition of The New Standard.