With Good Reason Obamacare and Conscience Protections in Healthcare

Aug 4, 2009

Growing alarm that an eventual healthcare reform bill would mandate universal coverage of abortion in health insurance has raised the immediately related concern over how this legislation would impact the issue of conscience protections in healthcare generally.

To be sure, President Obama is on record as favoring a "robust" federal policy protecting health-care workers who conscientiously object to performing certain procedures.  Speaking to reporters just before his first meeting with Pope Benedict a couple of weeks ago, President Obama insisted that, under his administration, Catholic healthcare professionals would not be forced to participate in procedures that violate their conscience. He described himself as a "believer in conscience clauses."

Yet, he recently proposed to rescind a strong conscience rights regulation set in place by the Department of Health and Human Services in December of 2008 which reinforced existing conscience protection statutes. Consequently, at present, conscience rights in healthcare for those who would refuse involvement in procedures such as abortion is in limbo.

Against this backdrop of ambiguity, the healthcare reform legislation (H.R. 3200) now under consideration will make taxpayers fund abortions unless abortion coverage is explicitly excluded.

And if conscience protections remain weak (or never materialize in this particular piece of legislation or as part of the U.S. Code) then the impending abortion mandate in Obamacare could mean that scores of healthcare workers will be given the choice of either violating their consciences or losing their jobs, especially since the abortion mandate will almost certainly result in a broader availability of abortions and in higher numbers.   Additionally, if those conscience protections are lacking, more and more providers will face discrimination based on their beliefs as they are faced with the prospect of participating in abortions and other objectionable procedures.   

Obviously then, it would be optimal to embed specific language addressing conscience protections in any eventual healthcare reform bill. Representative Bart Stupak, a pro-life Democrat from Michigan, accomplished that -- at least in part -- last  week, when the Energy and Commerce Committee (ECC) accepted part of Stupak's amendment to the ECC's version of the health reform bill. The current version of the bill now provides for the conscientious objection of providers at least in the context of abortion:  A federal agency, or state or local government receiving federal funds under the Act, may not discriminate against an individual or institutional health care provider because the provider does not provide, pay for, provide coverage of, or refer for abortions.

That is at least a bit of good news. But there is still work to be done. The Stupak amendment originally included a provision on conscience rights in contexts other than abortion. That portion of the amendment had to be dropped due to strong opposition from committee members.

Whether this conscience provision for abortion is retained if Congress passes the health reform bill remains to be seen. Moreover, what we need in the final version of the bill is a provision allowing health plans and health insurance issuers to accommodate the conscientious objections of purchasers or individual or institutional healthcare providers in the face of procedures which are contrary to the religious beliefs or moral convictions of those purchasers and providers.

Lacking such strong conscience protections in this bill and in the US Code, we can expect to see more of what was recently exemplified in the case of Catherina Cenzon-DeCarlo, a nurse at Mt. Sinai Hospital in New York City who is now suing the institution because it forced her to participate in a late-term abortion or lose her job. Attorneys from Alliance Defense Fund filed suit on behalf of Ms. DeCarlo on July 17.

So will Mr. Obama be faithful to his commitment to enshrine "robust" conscience protections for healthcare professionals as he attempts to overhaul the healthcare system? We'll find out in September. Meanwhile, we have the month of August to take action and give an earful to our elected representatives.

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