New health-care law raises concerns about respecting providers' consciences

By Rob Stein
Tuesday, May 11, 2010

Deep within the massive health-care overhaul legislation, a few little-noticed provisions have quietly reignited one of the bitterest debates in medicine: how to balance the right of doctors, nurses and other workers to refuse to provide services on moral or religious grounds with the right of patients to get care.

Advocates for protecting health workers argue the new law leaves vulnerable those with qualms about abortion, morning-after pills, stem cell research and therapies, assisted suicide and a host of other services. Proponents of patients' rights, meanwhile, contend that, if anything, the legislation favors those who oppose some end-of-life therapies and the termination of pregnancies and creates new obstacles for dying patients and women seeking abortions.

Both sides acknowledge that the scope of any new conflicts that might arise under the legislation will become clear only as the implications of the overhaul unfold. But both agree that clashes are probably inevitable.

"It's sort of the son of the 'death panels,' " said Loren Lomasky, a University of Virginia professor of philosophy who studies conflicts of conscience in health care, referring to last summer's controversy about end-of-life counseling. "This is a major transformation of the health-care system. And when this sort of thing happens, fissures can open up and you can fall into them if you're not careful."

The debate has focused attention on President Obama's plan to rescind a federal regulation put into effect by the previous administration to protect workers who refuse to provide care they find objectionable. Soon after taking office, Obama announced he would lift the rule, arguing it could create obstacles to abortion and other reproductive health services. But a final decision about whether to kill, keep or replace the rule with a compromise has been pending as the debate over the health law raged. The outcome is being closely watched as a bellwether of how the administration will handle a possible thicket of conflicts under the health legislation.

"The act is thousands of pages of new government power, decision-making and funding," said Matthew S. Bowman of the Alliance Defense Fund, which represents workers who object on religious grounds to being required to provide some forms of health care. "Any government power over health care can be exercised in a way that discriminates against pro-life health providers, especially when officials already support abortion and oppose enforcement of conscience laws."

'Like a horror film'

Bowman and others point to Catherina Cenzon-DeCarlo as an example of what they fear could become increasingly common as the government becomes much more deeply entwined with health care. Cenzon-DeCarlo was working at Mount Sinai Hospital in New York last year when the nurse was stunned to learn that she had been assigned to help abort a 22-week-old fetus. A devout Catholic, Cenzon-DeCarlo thought she had a long-standing agreement with the hospital that let her avoid abortions. But this time, despite her pleas, Cenzon-DeCarlo's bosses insisted.

"It felt like a horror film unfolding," Cenzon-DeCarlo said. "It was devastating. I have suffered intense emotional pain. I've had nightmares. . . . I felt violated and betrayed."

Cenzon-DeCarlo, who filed state and federal lawsuits against Mount Sinai, is the only health-care worker who has filed a complaint under the previous administration's rule, which remains in effect. The U.S. Department of Health and Human Services is investigating, but officials would not comment on the case. The hospital also declined to comment.

Whatever the outcome of the Cenzon-DeCarlo case and the fate of the rule, administration officials said they were confident the rights of health-care workers would be safeguarded.

"No matter what decision is made in terms of this particular rule, providers will continue to be protected -- as they have been for years -- by the existing conscience-clause statutes that will remain on the books," said HHS spokeswoman Jenny Backus. "Not only are there strong existing protections in current law, but the new health-reform law also explicitly demonstrates strong support for the rights of providers and patients."

The new legislation mandates that plans offered through the state-based insurance marketplaces called exchanges do not "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." The legislation also bars discrimination against those opposed to "assisted suicide, euthanasia, or mercy killing." In addition, Obama's accompanying executive order, signed as part of last-ditch efforts to pass the legislation, reaffirms all existing federal conscience protections.

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