Obamacare Could Obliterate Most Health-Care Conscience Protections, Experts Say

The Abortion Non-Discrimination Act, to be voted on this month, may relieve some of the pressure.

(photo: Shutterstock.com)

WASHINGTON — Nurses in New Jersey are fighting a new requirement at their hospital to assist with abortions.
In Washington state, individual pharmacists and an independent pharmacy battle to restore the right to opt out of a requirement to dispense emergency contraception.

Nationwide, Catholic institutions, like Belmont Abbey College in North Carolina, have protested an interim federal rule that requires all private employee insurance plans to cover contraceptives.

According to some experts in health care and the pro-life movement, conscience protections in health care continue to weaken. And the full implementation of the Patient Protection and Affordable Care Act — “Obamacare” — could virtually obliterate such protections for individual health practitioners and institutions, some critics predict.

“There is a very concerted campaign under way nationwide to compel health-care providers to participate in abortions and to enforce this through a number of different mechanisms,” said Douglas Johnson, legislative director of the National Right to Life Committee.

“The state and federal laws that shield health-care professionals from being forced to participate in abortions have been under assault for quite a number of years now by groups like the American Civil Liberties Union. They call them ‘refusal clauses.’ They have argued that they should be deemed unconstitutional,” Douglas added.

Bill Cox, president of the Alliance for Catholic Healthcare in California, echoed this gloomy prediction.

“We’re actually seeing and are concerned about threats from state government — and the federal government, quite frankly — with regards to compelling our organizations, our ministries to provide, pay for or cover abortions,” said Cox, whose organization represents 54 hospitals in California.

Cox and his allies in Catholic health care and the pro-life movement back the passage of the Abortion Non-Discrimination Act (ANDA, H.R. 361), which Congress may pass this month as part of a large spending bill.

“ANDA strengthens existing federal conscience-protection laws and affirms the principle that no health care entity should be forced by government to perform or participate in abortions,” said Michael Taylor, executive director of the National Committee for a Human Life Amendment, who cited troubling developments at the state and federal level in an email to supporters.

“The need for ANDA is clear from recent increased threats against pro-life health-care providers,” Taylor stated in his message, which noted that California state officials “are demanding that even Catholic organizations provide abortion coverage, arguing that current laws do not apply and that the federal government would never deny California all its funds under the Labor [Department]/HHS bill. These threats will only grow unless ANDA is enacted now.”

Cardinal Daniel DiNardo, chairman of the U.S. bishops’ Pro-Life Committee, wrote to congressmen in January that “ANDA will codify the long-standing policy of the Hyde/Weldon Amendment in permanent law, while enhancing its enforceability. Under ANDA, health-care entities discriminated against by governments that receive federal funds can go to court to vindicate their rights, and the Office for Civil Rights at the Department of Health and Human Services will be designated to investigate complaints.”

Hyde/Weldon denies federal funding to any level of government that requires health-care providers to participate in and provide abortions.
Cox of the Alliance for Catholic Healthcare in California applauds ANDA’s inclusion in the Labor-HHS appropriations draft bill.

“We’re hopeful that if we can get ANDA into the House Omnibus bill that the House leadership will stand firm, the Senate will back down on it and accept it, and because it’s in a must-sign piece of legislation that the president will actually sign it into law,” said Cox.

If ANDA becomes federal law, he suggested, it will be difficult for state governments, like licensing authorities — state agencies that regulate health plans — to require that abortion be covered in those plans or that abortion be covered as a condition of licensure.

Gutting Conscience Rules

The need for bills like ANDA has intensified since the beginning of the Obama administration, according to Catholic health care and pro-life leaders.

In his 2009 commencement address at the University of Notre Dame, President Obama vowed to support “sensible” conscience protection for health-care providers. But his critics say his policies have moved in the opposite direction.

“There are a couple of things that are converging, and it just so happens that the point of the spear now is a very powerful administration and key figures in that administration, including the president, his innermost circle that he listens to and that calls the shots, and someone like the secretary of Health and Human Services, who has more power than that position has ever had due to the new [health care] law,” noted John Brehany, executive director of the Catholic Medical Association.

First on Brehany’s list of grievances is the Obama administration’s gutting of a comprehensive plan established in the final days of the previous administration to boost conscience protections.

“The Bush administration looked into how to retake existing federal law and clarify it so things like [medical boards requiring abortion training] aren’t used to punish individual providers,” Brehany said.

Johnson noted that some federal laws provided limited protection in some cases, but Congress has had to “beef up those protections.”

In the mid-1990s, Congress adopted the Coates-Snow Amendment to head off a mandate that would have made it mandatory to be trained in abortions in obstetrics, and in 2004, Congress passed the Hyde-Weldon Amendment.

“We’ve got these laws on the books,” Johnson said, “but they’re imperfectly enforced, and a lot of health-care providers, hospital administrators don’t even know they exist.

“So the Bush administration put out a regulation that basically created an enforcement mechanism so that, for example, nurses who are told they have to participate in abortions would be able to call up a federal agency and file — basically, there’d be a mechanism that in a timely and efficacious way would bring these laws to bear so that people could get relief when they need it.”

The Bush regulations also defined “who is covered and what constitutes doing services or what is protected,” Brehany added. He noted that the Obama administration’s decision to throw out that rule ended an important effort to set standards and educate professionals.


Then there’s the new health-care law, which Johnson said has “very weak conscience language in it” and provisions that open the door to various abortion subsidies.

Brehany asserted that the new health bill strengthened the power of the secretary of Health and Human Services and anti-discrimination statutes. “We wanted language written in that would guarantee that none of those authorities would be used to coerce people to participate in abortions.”

The law gives the HHS secretary “massive new powers to define things like preventive services for women and essential health services and so on,” Brehany noted.

When HHS imposed the contraceptive mandate in insurance plans, it provided a very narrow religious exemption. To qualify, a religious organization has to show that it employs predominantly members of one faith; serves predominantly members of one faith; is actively seeking to proselytize and convert people to that faith; and operates under the Internal Revenue Service code for religious organizations.

An ACLU Reproductive Freedom Project document from 2002 on “refusal clauses” details cases of religious institutions that decline to perform abortions or sterilizations or to provide contraceptive devices or advice. It documents extreme examples, such as a woman in danger of death because a religious facility refused to perform an abortion that would save her life.

The ACLU document portrays such institutions as imposing their guiding religious principles on people who don’t share the faith. But it seems to ignore the concept of material cooperation — the primary reason Catholic practitioners and institutions “refuse” to participate in abortions, sterilizations, promotion and facilitation of contraceptives and physician-assisted suicide. In a similar vein, Catholics, and other abortion opponents also seek to avoid formal and material cooperation with a moral evil and do not want to pay into health-care plans or have their tax dollars used to cover objectionable procedures.

In addition, a 2010 manual, “Health Care Refusals: Undermining Quality Care for Women,” issued by the National Health Law Program, was a milestone in the long effort to rein in the conscience rights of medical practitioners, according to Johnson. It lays out a “multipronged effort to make abortion the norm throughout the health-care system and to enforce it, to make it a mandated service through force of law, through force of malpractice law, through ethical so-called norms adopted by particular professional societies and other methods,” he said.

Over the years, he said, pro-abortion activists have attempted to get courts and others to “construe the laws narrowly or to construe certain laws that mandate abortion services in the face of these protections. They’ve put political pressures on various state and local officials to take different actions to coerce individual institutions and groups of institutions to provide abortions.”

Simple Change in Contract

Brehany predicted that if the government finalizes the HHS mandate that every insurance policy cover contraceptives it will move on to require every health-care provider to provide all “reproductive health” services, including abortion, “because [as those people believe] everybody’s entitled to them and they’re paid for, and we’ve had our best secular doctors say, ‘This is the standard of medical care for women,’ so therefore, ‘there’s nowhere for you to go; people are entitled to get what’s coming to them.’”

He speculated that the scenario for health-care providers could be similar to the government grant that the U.S. Conference of Catholic Bishops’ trafficking victims’ services lost.

“Mostly, the grant looks exactly the same as the year before; it’s just that there are a couple of extra lines in the contract. ... And in all the new contracts for a pediatrician or a family-practice doctor all it has to say is Provider agrees to provide on demand all preventive services required by federal law under the Patient Protection and Affordable Care Act.

When the Register asked the American Medical Association if they had a position on the Abortion Non-Discrimination Act, a spokesman declined comment. When asked whether conscience protection for its members was an important issue for the AMA, the spokeswoman referred the Register to the American College of Obstetrics and Gynecology, an AMA federation member. The ACOG did not respond to a query.

John Burger is the Register’s news editor.