On March 1, the U.S. Senate voted 51 to 48 to table the “Respect for Rights of Conscience Act,” introduced by Rep. Jeff Fortenberry (R-NE) and Senator Roy Blunt (R-MO) to protect conscience rights in the face of the new Patient Protection and Affordable Care Act (PPACA).
This conscience proposal would forbid the use of new mandated benefits lists under PPACA to force those who offer, sponsor, or purchase health plans to cover specific items or services that violate their “religious beliefs or moral convictions.” The immediate threat is the Obama administration’s mandate for almost all health plans to include female sterilization, all FDA-approved “contraceptive” drugs (including those that can act as early abortifacients), and related education and counseling, without co-pays or out-of-pocket expenses.
The contraceptive mandate debate is far from over. Among other things, the House of Representatives—where more than half the members have co-sponsored the Fortenberry/Blunt bill—has yet to act on this issue. But efforts to resume the debate will run up against at least two charges. One is the claim that the bill would allow employers on “moral” grounds to deny health coverage to black Americans, or pregnant women, or people with disabilities—but that claim is clearly false, since such discriminatory decisions have long been forbidden by other federal laws that the new bill does not alter. The other major charge, which continues to be made, is that such a conscience proposal is an unprecedented attack on “women’s health,” in fact part of what Vice President Biden has called a Republican “war on women.”
What is the truth about this charge? For an answer, we need look no farther than the most recent non-Republican presidency, that of Bill Clinton.
In 1997, President Clinton and Congress wanted to address a specific problem: Some managed-care plans were telling providers in their networks that they may not discuss with their patients, or do referrals for, any services the plan does not provide. Apparently the managed-care organizations did not want patients to know about services they may have chosen not to provide on fiscal grounds, for fear the patients may seek coverage elsewhere. President Clinton signed into law a proposal requiring managed-care plans participating in Medicaid and Medicare to allow such counseling and referral. But the proposal had a conscience exemption. Here’s the Medicaid language (here and in what follows, italics are added for emphasis):
[Protecting enrollee-provider communications] shall not be construed as requiring a Medicaid managed care organization to provide, reimburse for, or provide coverage of, a counseling or referral service if the organization … objects to the provision of such service on moral or religious grounds …
Such an organization had to notify enrollees of such a morally based policy when they sign up for the plan. Virtually identical language, under the heading “Conscience Protection,” was applied to Medicare+Choice plans.
These provisions were signed into law on August 5, 1997, as part of the Balanced Budget Act of 1997. The final conference report had been approved by the Senate 85 to 15, with these provisions accepted by Senators Reid, Mikulski, Durbin, Boxer, Murray, Leahy, Inouye, Landrieu, Dorgan, and other progressive lawmakers who now oppose similar language amending PPACA.
Sometimes a president has to sign particular provisions he does not personally favor, as part of an overall law that he sees as essential for other reasons. But that was not the case here. In 1998, the Clinton administration, on its own initiative and its own authority, addressed this same issue of enrollee-provider communications in the Federal Employees Health Benefits Program (FEHBP). The Clinton regulation states:
Providers, health care workers, or health plan sponsoring organizations are not required to discuss treatment options that they would not ordinarily discuss in their customary course of practice because such options are inconsistent with their professional judgment or ethical, moral or religious beliefs.
So not only did an organization sponsoring a health plan not have to cover services against its religious beliefs or moral convictions—it didn’t even have to talk about any such service (or let its providers talk about them). Fourteen years later, no member of Congress has contested this policy.
The following year, 1999, President Clinton signed into law an appropriations rider requiring most health plans offered in the FEHBP program to provide contraceptive coverage. But even that mandate exempted “any existing or future plan, if the carrier for the plan objects to such coverage on the basis of religious beliefs.” Abortion was explicitly excluded from the mandate as well. As for health plans that did provide contraceptive coverage because their issuer had no religious objection to it, those plans could be denied participation in FEHBP if they decided to “subject any individual to discrimination on the basis that the individual refuses to prescribe or otherwise provide for contraceptives because such activities would be contrary to the individual’s religious beliefs or moral convictions.”
This policy, too, remains in law, having been reaffirmed by Congress every year since as part of the annual appropriations process.
Finally, on November 22, 2000, President Clinton signed into law a District of Columbia Appropriations Act for Fiscal Year 2001 that provided:
Nothing in this Act may be construed to prevent the Council or Mayor of the District of Columbia from addressing the issue of the provision of contraceptive coverage by health insurance plans, but it is the intent of Congress that any legislation enacted on such issue should include a “conscience clause” which provides exceptions for religious beliefs and moral convictions.
Congress approved this language because the D.C. city council had approved a contraceptive mandate for health plans in the District without a conscience clause. Mayor Anthony Williams pocket-vetoed that law. Congress and the president then acted to prevent such a mandate from passing in the future without clear protection for moral and religious objections. The appropriations act incorporating this provision passed the House without objection, and the Senate by unanimous consent. This provision, too, has been reaffirmed by Congress every year since then.
This Clinton legacy was no departure from party orthodoxy. In 1994, with the support of Senate Majority Leader George Mitchell (D-ME), Senator Daniel Patrick Moynihan (D-NY) brought to the Senate floor a “Health Security Act” approved by the Senate Finance Committee which he chaired—one of several (ultimately unsuccessful) efforts to enact a comprehensive health care reform law during the Clinton years, over heavy conservative opposition. The Moynihan bill included this extensive provision “relating to religious belief or moral conviction”:
Nothing in this title shall be construed to—
(1) prevent any individual from purchasing a standard benefits package which excludes coverage of abortion services, if the individual objects to abortion on the basis of a religious belief or moral conviction;
(2) prevent any employer from contributing to the purchase of a standard benefits package which excludes coverage of abortion or other services, if the employer objects to such services on the basis of a religious belief or moral conviction;
(3) require any health professional or health facility to perform or assist in the performance of any health care service, if the health professional or facility objects to performing or assisting in the performance of such a service on the basis of a religious belief or moral conviction; and
(4) require any commercial insurance company, Blue Cross plan, integrated health plan, or any other organization that assumes health insurance risk to offer a package including abortion or other services, if the health plan sponsor objects to covering such services on the basis of a religious belief or moral conviction.
The conscience protection afforded by the Blunt/Fortenberry bill is modest compared to that proposed by Senator Moynihan.
Finally, what of the man hailed as the “Liberal Lion” of the Senate during this period, Senator Edward “Ted” Kennedy? He was prime sponsor of the Health Insurance Bill of Rights Act of 1997 (S. 353). It proposed the same policy on “medical communications” between health insurance issuers and their enrollees that President Clinton would sign into law for Medicare and Medicaid: instead of providing counseling and referrals for procedures it objects to, an insurance issuer could simply inform enrollees of “the coverage’s limitations on providing particular medical services (including limitations on referrals for care provided outside the coverage) based on the religious or moral convictions of the issuer.” The Kennedy bill, which did not pass, would have incorporated this conscience policy into a new section of the Public Health Service Act.
Senator Kennedy’s interest in health care rights of conscience spanned his political lifetime. During his final illness he wrote a letter to Pope Benedict XVI, stating, “I believe in a conscience protection for Catholics in the health field, and I’ll continue to advocate for it as my colleagues in the Senate and I work to develop an overall national health policy that guarantees health care for everyone.” He had also supported the first major federal conscience law in 1973—the Church amendment, sponsored by Senator Frank Church (D-ID). That law has for thirty-nine years protected the right of health care institutions to continue receiving federal funds while declining to take part in abortion or sterilization—and the right of individual health care professionals to be free from discrimination in these areas when they apply for medical education or training or hospital privileges. The Church amendment also allows an individual working in programs funded by the Department of Health and Human Services to decline participation in literally any medical or research activity that is “contrary to his religious beliefs or moral convictions.” (For the texts of this and other conscience laws see the fact sheet, “Current Federal Laws Protecting Conscience Rights.”)
Some have pointed out that between 2001 and 2007, Senator Kennedy sponsored bills to create a nationwide contraceptive mandate in health plans, and these bills did not include a conscience clause. But if any of these bills had ever been marked up in committee, everyone knew at the time that the framing of conscience language was one of the tasks the lawmakers would have to take up.
The fact is that while one of the Kennedy contraceptive bills was the subject of a Senate committee hearing in 2001, none of them was ever reported out of any committee in House or Senate—despite Democrats’ control of the Senate from 2001 to 2003, and their control of both chambers of Congress and the White House from 2007 to 2010. No federal legislative body of any party has ever voted to make private employers include contraceptive coverage in their health plans, with or without a conscience exemption. That did not happen until PPACA gave new authority to unelected officials at the Department of Health and Human Services—who then redefined “preventive services” to include contraception, sterilization, and abortifacient drugs.
Hypocrisy or bad short-term memory can be a bipartisan sport. In the recent health care reform debate, Democrats have asked Republicans: How did the mandate for each person to buy health insurance become a hated paradigm for overreaching by the federal government, when the idea has appeared in Republican proposals for health care reform in the past? That’s a fair question.
But Democrats in turn haven’t answered this question: How did respect for religious beliefs and moral convictions in health care and health coverage, until recently a common bipartisan consensus, become “dangerous and wrong” (as HHS Secretary Sebelius said of the Blunt/Fortenberry bill on March 1)? How did a position held even a few years ago by so many celebrated Democratic leaders in Congress and the White House suddenly become a “Republican war on women”? If this radical shift does not signal a new animosity toward freedom of conscience and freedom of religion, what does it signify?
It’s a fair question. Answers, anyone?