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Friday, April 23, 2010

Conscience protection gap in healthcare overhaul law poses threat to poor patients

Where does the new healthcare overhaul law leave healthcare professionals regarding the exercise of their conscience rights? How might it impact the poor patients now served by faith-based professionals and institutions?
In the complicated process of evaluating legislative language, it’s difficult to just read the text and figure out what’s wrong, because the devil is in the details of what has been left out rather than what has been left in. One of the most helpful tools in analyzing a bill is to compare the bill that passed with amendments (and other bills) that did not pass.
First, a bottom-line summary:
  1. Conscience protections only apply to abortion, not to all the other ethical challenges healthcare professionals face, often on a fairly regular basis.
  2. The non-discrimination language of the law just passed applies only to discrimination under a health insurance plan. Compare this language to the House-passed language (which did not become law), which also importantly prohibits governments from discriminating.
  3. Nothing is mentioned to prevent discrimination in training for abortions. The Coburn amendment included this language, which the Senate rejected.
  4. President Obama's Executive Order does nothing whatsoever beyond what already exists in law (which his administration is loath to enforce) and what the Senate bill already contained.
Second, a detailed summary of relevant conscience provisions in the law, in the House-passed bill that did not become law, and in the conscience amendment offered by Sen. Tom Coburn, MD (R-Okla.) that did not become law. Examining the legislative language below—paying special attention to highlighted items—reveals not only what language survived the final bill that was passed, but also (even more revealingly) what language did not survive in the final bill that is now law:
Senate bill (now law) – HR 3590
SEC. 1303. SPECIAL RULES.
(p. 45 of the Senate Manager's Amendment)‘‘(4) NO DISCRIMINATION ON BASIS OF PROVISION OF ABORTION.—No qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions.
Now take a look at the conscience provisions that did not become law:
House-passed bill HR 3962 (did not become law)
“Affordable Health Care for America Act”
SEC. 259. NONDISCRIMINATION ON ABORTION AND RESPECT FOR RIGHTS OF CONSCIENCE.(a) NONDISCRIMINATION.—A Federal agency or program, and any State or local government that receives Federal financial assistance under this Act (or an amendment made by this Act), may not—
(1) subject any individual or institutional healthcare entity to discrimination; or
(2) require any health plan created or regulated under this Act (or an amendment made by this Act) to subject any individual or institutional health care entity to discrimination, on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.
(b) DEFINITION.—In this section, the term "health care entity" includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.
(c) ADMINISTRATION.—The Office for Civil Rights of the Department of Health and Human Services is designated to receive complaints of discrimination based on this section, and coordinate the investigation of such complaints.
Sen. Tom Coburn, a physician and Republican from Oklahoma, offered the following comprehensive conscience amendment, which lost along party lines.
Coburn Amendment #2967 (not passed)
Purpose: To ensure health care providers are not forced to participate in abortions or discriminated against because they choose not to do abortions.
On page 124, line 1 insert ‘‘OTHER’’ before ‘‘FEDERAL’’.
On page 124, line 4, insert ‘‘other’’ before ‘‘Federal’’.
On page 124, between lines 22 and 23, insert the following:
SEC. 1304. NONDISCRIMINATION ON ABORTION AND RESPECT FOR RIGHTS OF CONSCIENCE.
(a) NONDISCRIMINATION.—A Federal agency or program, and any State or local government, or institutional health care entity that receives Federal financial assistance under this Act (or an amendment made by this Act), shall not—
(1) subject any individual or institutional health care entity to discrimination; or
(2) require any health care entity that is established or regulated under this Act (or an amendment made by this Act) to subject any individual or institutional health care entity to discrimination, on the basis that such health care entity does not provide, pay for, provide coverage of, or refer for abortions.
(b) DEFINITION.—In this section, the term ‘‘health care entity’’ includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, a plan sponsor, a health insurance issuer, a qualified health plan or issuer offering such a plan, or any other kind of health care facility, organization, or plan.
(c) ADMINISTRATION.—The Office for Civil Rights of the Department of Health and Human Services is designated to receive complaints of discrimination based on this section, and coordinate the investigation of such complaints.
Effect of Coburn Amendment on Reid Bill’s Language
 [adds the word “other” to current Reid provisions]
(2) NO EFFECT ON OTHER FEDERAL LAWS REGARDING ABORTION.—
(A) IN GENERAL.—Nothing in this Act shall be construed to have any effect on other Federal laws regarding—
(i) conscience protection;
(ii) willingness or refusal to provide abortion;
and
(iii) discrimination on the basis of the willingness or refusal to provide, pay for, cover, or refer for abortion or to provide or participate in training to provide abortion.
[inserts the following new section]
SEC. 1304. NONDISCRIMINATION ON ABORTION AND RESPECT FOR RIGHTS OF CONSCIENCE.
(a) NONDISCRIMINATION.—A Federal agency or program, and any State or local government, or institutional health care entity that receives Federal financial assistance under this Act (or an amendment made by this Act), shall not—
(1) subject any individual or institutional health care entity to discrimination; or
(2) require any health care entity that is established or regulated under this Act (or an amendment made by this Act) to subject any individual or institutional health care entity to discrimination,
on the basis that such health care entity does not provide, pay for, provide coverage of, or refer for abortions.
(b) DEFINITION.—In this section, the term ‘‘health care entity’’ includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, a plan sponsor, a health insurance issuer, a qualified health plan or issuer offering such a plan, or any other kind of health care facility, organization, or plan.
(c) ADMINISTRATION.—The Office for Civil Rights of the Department of Health and Human Services is designated to receive complaints of discrimination based on this section, and coordinate the investigation of such complaints.
At the end of the day, Congress passed and the President signed into law a bill that only gave as much of a nod to conscience rights as was deemed politically necessary to minimize opposition to the legislation. 
The gap leaves healthcare professionals, and especially faith-based physicians, nurses, hospitals and clinics, vulnerable to all forms of discrimination by governments and on a host of ethical issues beyond abortion. 
The long-term result of this gap of protection may well be the forcing out of faith-based professionals and institutions from medicine, resulting in the loss of the vital healthcare services for the poor that they provide.