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

By Rob Stein
Tuesday, May 11, 2010; HE01

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.

But some argue that the legislation does not go nearly far enough, given the breadth of the new legislation and possible unanticipated effects. For example, the legislation does not protect workers who oppose abortion from discrimination by any entities other than health plans, leaving federal, state and local governments, clinics, hospitals and others potentially free to compel providers to perform abortions, they say.

"At the end of the day regarding the legislation, a pro-life health-care professional is left with a weak and limited conscience provision that doesn't even prohibit discrimination by governments and institutions," said Jonathan Imbody, vice president for government relations at the Christian Medical Association.

And the legislation does not safeguard doctors, nurses and others who object to anything else, especially care that might be mandated by the federal government as "essential services," such as birth control pills, sterilization, genetic testing and in-vitro fertilization.

"There are literally dozens of procedures that can be controversial to Catholics, for some to Jews, for some for Muslims, for evangelical Protestants," said Lynn Wardle, a professor of law at the Brigham Young University Law School.

Current protections

Administration officials and abortion-rights groups argue that sufficient protections are already in force through a host of federal and state laws and regulations, most notably the long-standing Weldon and Church amendments. In addition, Title VII of the Civil Rights Act of 1964 protects against religious discrimination.

"We are quite concerned about religious liberty, but we think the current law appropriately balances individual religious liberty and patients' need for access to health care," said Jennifer Dalven, who directs the American Civil Liberties Union Reproductive Freedom Project. "What some people are seeking are rules that take patients out of the equation."

Critics, however, note that the Weldon and Church amendments apply only to entities funded through federal appropriations bills to which they are annually attached, and would not apply to funding that comes directly from the new legislation.

"This creates new mandates and new appropriations, and those new things will create new potential conscience problems unless there are new conscience fixes," said Anthony R. Picarello Jr., general counsel for the U.S. Conference of Catholic Bishops.

For their part, abortion-rights advocates are alarmed that the legislation did not include equal defenses for health-care workers who perform abortions. With abortion providers dwindling in number as they face protests and sometimes even violence, advocates fear the legislation will lead health plans to exclude doctors still willing to terminate pregnancies.

"What made it through is a lopsided conscience protection," said Nancy Northup, president of the Center for Reproductive Rights, a nonprofit group based in New York. "In a country where 87 percent of U.S. counties don't have an abortion provider, where abortion providers are murdered and harassed, you really need protections for those who advocate for both performing and referring for abortions. Not the other way around."

In addition, critics of the conscience language argue, the legislation in some ways expands protections for those who oppose abortion by shielding providers who refuse to even refer women to a willing doctor.

Proponents for end-of-life care, meanwhile, fear the legislation could enable doctors and nurses to refuse a range of requests from dying patients.

"All patients have the right to refuse medical interventions," said Kathryn L. Tucker, director of legal affairs for Denver-based Compassion & Choices. "If a patient directs . . . the withdrawal of a ventilator, and all know death will result, and a health-care provider refuses to respect the patient's wish, does this provide immunity to that provider? Putting the rights of the provider above the patient's? If so, that turns the provider-patient relationship upside down."

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