A great deal of attention has been paid to the quandary that nearly prevented the passage of the Patient Protection and Affordable Care Act (PPACA): federally subsidized abortion. Very little attention, however, has been focused on the status of conscience protection following passage of this lengthy, complicated piece of legislation, despite its being chock-full of new mandates that implicate the consciences of private and institutional providers, patients, and health insurance companies alike. A rare exception was Rob Stein’s piece in the Washington Post, yet even this article spared readers too many important details.
Why is the conscience issue so neglected? One possible reason is that conscience violations are less tangible than the destruction of a living human being. Furthermore, the area of conscience protection has many moving parts, which can be hard to monitor. Conscience protection laws can shield both the religious and moral objector or just the former; they might cover many different forms of involvement (providing, referring, etc.) in one or more services (abortion, euthanasia, birth control, etc.); they could cover one or more sets of actors in the health care field (individual providers, hospitals, insurance companies, etc.) against discrimination by one or more authorities (government entities, employers, health plans, etc.). There are also various theological and philosophical grounds for different conscience claims; these might range from an objection to killing (easy to grasp) to an objection to impairing the normal functioning of the human reproductive system (more difficult for many to grasp in a world awash in birth control). Finally, there is the seemingly insoluble dilemma posed when the demand for legal conscience protection is characterized as a contest between “your right to refuse” and “my right to have.”
But conscience protection merits increased attention, particularly in the context of legislation such as PPACA which contains an extraordinary array of new mandates affecting every player in American health care—governments, insurance exchanges and insurance plans, hospitals and clinics, doctors and employers, and every single health care consumer. Some new mandates include language (“essential health benefits,” “preventive services”) which regulatory agencies and judges might easily construe to include medical services objectionable to a wide swath of individuals and institutions. PPACA furthermore leaves a good deal of discretion to federal agencies about standards for qualifying doctors or institutions or insurance companies, without conditioning that discretion upon respect for individual or institutional conscience.
It is not too much to say that—unamended—PPACA threatens the continued existence of institutions deeply embedded in the American health care system, including nonprofit hospitals, clinics and social services. These are the collaborative efforts of professionals and staff dedicated to an unusual degree to the common good. Often, they are formed around a thick moral or religious identity. They benefit a significant portion of the population, but frequently focus especially on service to the poor and underserved. If not for these types of institutions, more and more of the work of caring for the sick, the poor, and the marginalized would fall to the government or simply go undone.
Many institutions in need of conscience exemptions provide a level of health care characterized by a commitment to treating the whole person, body, mind, and spirit. They take quite seriously their professions’ demands in the way of training, judgment and integrity. They sometimes assume a more critical stance toward health care practices supported by large pharmaceutical corporations or unregulated industries. such as assisted reproductive technology. In short, they are communities of dissent playing an important role in the health care landscape.
For these reasons, such institutions should be protected for what they are; our social world would be worse off without them. Their dissenting views on what many regard as marginal issues—contraception, for example—should be respected, and a failure to protect them on marginal issues threatens to have even more serious consequences. For the arguments for coercing objecting providers and institutions to cooperate with services to which they object—such as contraception—are frighteningly applicable to services like abortion. If a religious employer is required to pay for insurance coverage of contraception on “gender discrimination” grounds (as prescription contraceptives are made only for women) it is natural to suspect that mandated coverage for abortion (as a procedure performed only upon women) is not far behind.
What, then, are some of the key flaws in PPACA where conscience is concerned? To be sure, section 1304(b)(4) of the PPACA prohibits plans that qualify to participate in state health insurance exchanges from discriminating against any health care provider or facility because of its unwillingness to provide, pay for, provide coverage of or refer for abortions. It does not, however, encompass refusals to train for abortions, nor does it protect providers or health care entities against discrimination by various government entities, or institutions receiving federal funds. These groups remain free to compel providers to cooperate in the provision of controversial interventions. Further, section 1311(c) of the PPACA indicates one scenario in which the absence of protection against discrimination by the government is a threat to conscientious objectors. This section grants the executive branch of the federal government the authority to determine providers in health care plans to some extent, but without any protection for providers with conscientious objections. The president’s executive order could have, but did not, take care of this lacuna.
PPACA does offer important protections of conscience with respect to end-of-life care: governments at all levels are prohibited from discriminating against conscientious objectors under §1553 of PPACA as to assisted suicide, mercy killing, and euthanasia. But other medical services are not covered, a disconcerting omission.
PPACA further failed to state that existing state conscience protections are not preempted by the federal law, even while it did protect against federal preemption of state abortion laws regulating abortion or abortion coverage (§1301(c)(1)). And it failed to assure individuals or institutions the ability to purchase health care insurance consistent with their moral or religious conscience.
PPACA’s conscience protection flaws must be viewed against the backdrop of the law’s new mandates, new funding streams, new categories (e.g. “preventive” and “essential” services) and new powers vested often in the Secretary of Health and Human Services (HHS). It is also instructive to understand how many conscience exemptions are already contained (either in authorizing or appropriating legislation) in other federal laws, but are not in the PPACA and therefore not applicable to its many new mandates and funding streams. A comprehensive conscience amendment proposed by Senator Tom Coburn, containing many of the conscience protections found in other federal programs, was rejected in the Senate. Thus, for example, while §1303(b)(1) provides that abortion cannot be considered an “essential health benefit” under the new law, it does nothing to exclude abortion from being included within other categories of mandated services such as “ambulatory patient services,” “prescription drugs,” or “preventive services.” All of these categories the Secretary of HHS is authorized to populate under §1302(b). Nor does §1301(b)(1) provide that other procedures or services inimical to religious or moral convictions (e.g. sterilization, contraception, genetic testing, new reproductive technologies) may not be characterized by the Secretary as mandatory benefits under any one of these categories, including “essential health benefits.” The president’s executive order also failed to so direct HHS.
The precedent that will be set by the implementation of PPACA is also crucial. Even in a country increasingly marked by government regulation, PPACA represents a sudden and significant increase in the powers of the regulatory state. The implications for citizens’ and institutions’ abilities to live with personal integrity and the freedom to make decisions consonant with a long and deeply held understanding of the common good are profound. Opponents of conscience protection know this. It shows in the “take-no-prisoners” terms in which they conduct their debate. The Washington Post article reference above called conscience one of the “bitterest debates in medicine.” And the American Civil Liberties Union characterizes the position of conscientious objectors as “tak[ing] patients out of the equation.” The National Women’s Law Center has stated that it would refuse conscience protection to pharmacists, even in cases where a particular service might be obtained from a different provider and the objecting providers are willing to provide advance public notice of their stance. PPACA provides a large stage on which such players can shift the direction of health care over the next decades.
Sadly, some of those who support health care conscience protections in principle also threw their support behind PPACA on the strength of President Obama’s promises in a health care executive order signed after passage of the PPACA. But this is the same president who has proposed to rescind Bush-era conscience regulations, having stated publicly when he was a U.S. Senator that protecting the consciences of health care providers would impair the “health care needs of women.” Furthermore, the executive order could not constitutionally alter the legislation, which therefore remains problematic for conscience in several ways. It further failed to provide assistance in those areas where it might have directed the federal agency in charge (most notably the Department of Health and Human Services) to respect conscience.
Despite PPACA’s many failures to explicitly protect individual or institutional conscientious objectors, the Catholic Health Association (CHA) endorsed it shortly before the House vote. CHA’s endorsement is very likely impairing the public’s understanding of the law’s many conscience flaws. CHA’s 2009 “blueprint” for “ethical health care law” insisted upon “respect” for “the religious and ethical values of patients and health care providers alike.” Yet, after endorsing the bill, CHA never provided any legal analysis to back up its claim that “We are confident that the reform law . . . keeps in place important conscience protections for caregivers and institutions alike.” Detailed legal analyses of the bill’s conscience flaws went unanswered, both before and after PPACA’s passage.
Currently, a bill cosponsored by Republican Joseph Pitts and Democrat Dan Lipinski (H.R. 5111) contains a variety of conscience protections which would repair many of PPACA’s most serious flaws. It merits considerable attention in the public square as current changes in health care law could represent a watershed in the field of conscience protection.
Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute, where she serves as chair of the Task Force on Conscience Protection.