Status of Conscience Protection in the Pending Health Care Reform Bills

August 6, 2009

Current Health Care Bills Mandate Abortion Coverage

In addition to the explicit language in the House Bill (H.R. 3200 or Tri-Com Bill), the American Affordable Health Choices Act, which includes abortion as a mandatory minimum benefit in the newly-created public health care plan and requires taxpayer funding of abortion (see Capps amdt. to H.R. 3200), mandatory abortion coverage is confirmed by prior court interpretation and by the rejection of key amendments in congressional committees in recent days. Abortion mandates must therefore be explicitly excluded from health care proposals.

How Courts Will Read Abortion Into the Bills

In Planned Parenthood v. Engler, 73 F.3d 634 (6th Cir. 1996), a U.S. Court of Appeals held that abortion “fall[s] within several of Medicaid’s mandatory categories of care” and that a state law that restricted funding for abortion to those necessary to save the mother’s life conflicts with the “mandate” of Medicaid. Id. at 637. The court found that “under Medicaid, certain categories of medical care are mandatory and therefore must be provided by participating states when a physician certifies that the care is medically necessary to the patient . . . ” The court concluded that “the mandatory categories of care” included “inpatient hospital services, outpatient hospital services, other laboratory and X-ray services, “nursing facility services” “early and periodic screening and diagnosis for individuals under the age of 21,” “family planning services” and “physician services furnished by a physician.” Though “abortion” is not explicitly named in any of those services, the court broadly concluded, “abortion fits within many of the mandatory care categories, including ‘family planning,’ ‘outpatient services,’ ‘inpatient services,’ and ‘physician services.”

Other federal courts have reached the same conclusion. See Hope Medical Clinic v. Edwards, 63 F.3d 418 (5th Cir 1995); Little Rock Family Planning Services v. Dalton, 60 F.3d 497 (8th Cir. 1995), cert. denied, 116 S.Ct. 777 (1996); Hern v. Beye, 57 F.3d 906, 910 (10th Cir. 1995), cert. denied, 116 S.Ct. 569 (1995).

The above referenced judicial interpretation of Medicaid—whereby abortion is included within broad categories of services and “medically necessary” services which include elective abortion—will almost certainly be applied to any federal statute revising Medicaid and involving health care reform.

In addition, Sec. 122 of H.R.3200 and Sec. 3103 of the Senate HELP bill list several benefits which would fall under the category of “essential benefits” which any public plan or private plan participating in the Health Care Exchange/Gateway must offer. These benefits include “hospitalization”, “outpatient hospital and outpatient clinic services”, “professional services of physicians and other health professionals” and “preventive services.” As is clearly determined by the Engler case, each of these services will be interpreted by the federal courts to include abortion services.

In addition, H.R. 3200 allows states to cover “family planning services” under Medicaid. (See Sec. 1714). The definition of “family planning” in the bill comes from Sec. 1905(a)(4)(C) of the Social Security Act which defines “family planning” services as those “family planning services and supplies furnished (directly or under arrangements with others) to individuals of child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies.” Given the Engler court’s interpretation of family planning to include abortion, the use of the term “family planning services” is clearly another means by which courts will read abortion into HR 3200.

Congressional Committees Rejected Pro-Life Amendments

Finally, the health care reform bills mandate abortion services as evidenced by the Energy and Commerce and HELP Committees’ rejection of amendments which would have prohibited mandatory abortion coverage, ensured that taxpayer money did not fund abortion, and prevented preemption of state laws on abortion. The Senate HELP Committee rejected each of these amendments, offered by four different Senators (Enzi, Hatch, Roberts and Coburn) by a vote of 12-11.

Similarly, the House Energy and Commerce Committee rejected an amendment offered by Rep. Joe Pitts (R-Penn.) and Rep. Bart Stupak (D-Mich.) that would have excluded abortion from the required basic benefits that any government or private plan must offer, but included an exception for cases involving a danger to the mother’s life, rape, or incest. On the initial vote, the amendment passed by a vote of 31-27, but upon revote, Democrat from Tennessee, Rep. Bart Gordon changed his vote to No, sinking the amendment by a vote of 30-29.

In place of the Pitts/Stupak amendment, the Committee approved an amendment offered by Rep. Lois Capps (D-Calif.) by a vote of 30-28. The Capps amendment allows for immediate federal funding of elective abortion coverage through the public plan pursuant to a determination by the Secretary of Health and Human Services, requires that all areas of the country contain one private plan that covers abortion, and permits taxpayer subsidies of private plans that cover elective abortion.

Delegation to Administrative Committee

The Senate bill delegates to a “Medical Advisory Committee” (see Sec. 3103) the role of determining which minimum benefits any private or public health care plan must offer. It is expected that such unelected administrative committee will decide that abortion merits mandatory inclusion in any health care plan offered. Were this to occur, private plans would be forced to offer coverage for abortion, and taxpayers may be forced to subsidize abortions under a possible public health care plan.

While the House bill, H.R. 3200 includes a similar entity, the Health Benefits Advisory Committee, the task of determining mandatory minimum benefits, the Capps amendment to H.R. 3200, passed by a vote of 30-28, prohibits the Committee from mandating coverage of abortion. Importantly, however, the Capps amendment mandates abortion coverage itself through the public health care plan option and also requires that all areas of the country contain one private plan that covers abortion.

Mandatory Contracting with Planned Parenthood

Sec. 204 of H.R. 3200 also mandates that health insurers participating the Health Care Exchange contract with “essential community providers” who will provide services for the insured. Planned Parenthood is covered under the bill’s definition of “essential community provider” as an entity that performs outpatient services (See 1861(s)(2) of the Social Security Act ) and as a family planning project receiving a grant or contract under Sec. 1001 PHSA (42 USCS§3001.)

Sen. Barbara Mikulski (D-Md.) offered an amendment, which the Committee accepted by a vote of 12-11, to include the same language and mandate in the Senate HELP bill. Sen. Mikulski explained her amendment to require insurers to cover “essential community providers…that serve predominantly low-income, medically under-served individuals.” as providing for any service deemed medically necessary or medically appropriate.”

In response to Mikulski’s amendment, Sen. Hatch offered an amendment that would prevent tax-funded abortions unless the life of the mother is endangered or unless the pregnancy is the result of rape or incest. These amendments would have made the Hyde Amendment permanent, but the amendments failed 12-11. Pennsylvania Sen. Bob Casey was the only Democrat to vote in favor of the Hatch amendment.

During the debate over the Hatch amendments, Sen. Durbin made the claim that the Hyde Amendment was “settled law” (and thus already established, making the Hatch amendment unnecessary). This is incorrect. The Hyde amendment was a yearly “fix” to the Labor and Health and Human Services Appropriations bill rather than permanent law, and moreover, many parts of the health care reform bills before Congress would not be subject to the Hyde amendment “fix” either way.

Troubling Provisions on End-of-Life Care

In H.R. 3200, section 1233 addresses end-of-life care. The section leaves unclear whether the government or a health care provider could counsel or encourage a patient to choose physician- assisted suicide as a solution to terminal illness. While section 1233 remains in the bill, an amendment offered by the “Blue Dog Democrats” and accepted by the Energy and Commerce Committee clarifies end of life counseling and services by adding Sec. 138 to the bill. Section 138, though placed in an entirely different section of the bill, also addresses physician-assisted suicide and end of life planning. Section 138 prevents the promotion of assisted suicide, (though not the practice of it) and makes it clear that material distributed by Qualifying Health Benefits Plans (QHBPs) “shall not include advanced directives or other planning tools that list or describe as an option suicide, assisted suicide or the intentional hastening of death regardless of legality.” However, there is an exception to this for states that already require this information to be listed.

Also, section 138 clarifies that nothing in the text should be construed as requiring one to affirmatively ask for life sustaining treatments or as requiring an individual to consent to restrictions on the amount duration, scope or medical benefits of treatment.

Illusory Provider Rights of Conscience

Provider Rights of Conscience

H.R. 3200 currently contains two conscience clauses. Reps. Pitts, Stupak, and Lee Terry (R-Neb.) drafted a conscience clause which the Energy and Commerce Committee passed by voice vote, and Representative Capps also included a conscience clause in the amendment she successfully offered on July 30.

Both amendments prohibit discrimination against physicians, other health care professionals, hospitals, provider-sponsored organizations, health maintenance organization, and health insurance plans for refusing to provide, refer for, pay for or provide coverage for abortion.

On the Senate side, Sen. Kennedy offered an amendment on July 13 to the HELP bill (amdt. 205) which would ensure that no health care provider or entity is excluded from contracting with an insurance plan participating in “the Gateway” (the HELP bill’s health care exchange framework) on the basis that the provider or entity refuses to perform abortions if performing abortions would be contrary to the religious or moral beliefs of the individual or entity. This amendment was accepted. The scope of the Kennedy amendment is limited however. It does not cover providers who refuse to pay for or refer patients for abortion services. In addition, the amendment provides an exception for “cases of emergency,” which is undefined and can be stretched to fit almost any situation, effectively stripping providers of any protection the amendment may have offered them. Medical providers need true rights of conscience protection and an ability to meaningfully object to performing abortions.

Sen. Tom Coburn (R-Okla.) offered an amendment (a codification of the Hyde/Weldon conscience protection law) which would ensure health care providers are not forced to participate in abortions or discriminated against because they choose not to do abortions (amdt. 246) and a second that would ensure that Americans have professional ethicists informing any Government-funded medical decisions (amdt. 264). The Coburn amendments were defeated.

Obama Administration Bid to Remove Federal Conscience Protections

Soon after taking office, President Obama made it a top priority to reverse a regulation that allowed providers the right to refuse to perform services to which they objected. The Bush Administration issued a regulation, made final on December 19, 2008, which was designed to clarify protection for conscience under the Church Amendment, a 30-year-old law establishing a conscience clause for health care professionals who had moral objections to providing abortions or other family planning services.¹ The rule applied broadly to all workers in a health care setting and included the right to refuse to provide services, information or advice to patients about subjects to which the provider has moral objections. The Obama Administration began the administrative process to reverse the Bush Administration’s regulation with a proposed rule change in the Federal Register March 10, 2009.

Endnote

1. “The Department of Health and Human Services proposes to promulgate regulations to ensure that Department funds do not support morally coercive or discriminatory practices or policies in violation of federal law, pursuant to the Church Amendments (42 U.S.C. § 300a-7), Public Health Service (PHS) Act §245 (42 U.S.C. § 238n), and the Weldon Amendment (Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 508(d), 121 Stat. 1844, 2209).”