‘Conscience Clauses’ Could Usher
Healthcare Access Crisis
by Catherine Komp
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.
Mar. 29 – 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
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
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.
Some 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
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.
according to the InterNational Council on Infertility
Information Dissemination,
about a dozen other states do, including
and
Bills like Hummel’s would allow healthcare corporations
or insurers who
disagree with any mandated benefit to insert language into corporate
policies
enabling them to circumvent state law.
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.
The Gay 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
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
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."
still have a public responsibility. Especially if they are accepting
public
money to operate, including Medicare and
Medicaid funds,
not to be able "to invoke a right of conscience on behalf of their
entire
institution."
Currently, nine states – including
professionals to refuse to dispense contraception based on moral or
religious
objections. Similar bills are pending in about 20 other states. In addition to
providers, institutions and payers is pending in