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Whose Conscience? The Brewing Battle Over Who Makes Your Health Care Decisions


Provider refusal clauses -- so-called "conscience clauses" are a bit of a mess right now, as Wilson points out. The history of provider refusal clauses is rather brief -- and marks the point when technology began to overtake conservative ideas of women's roles in society and medical imposition to God's provenance -- and began as a reaction to the legalization of abortion in 1973. What were once "protection" of doctors from performing medical services they morally or religiously objected to morphed into "protection" of entire institutions, like the Catholic church which is the second largest provider of health care in the U.S.

Backlash to Roe v. Wade has expanded these federal laws (as noted below, states have their own blanket of provider refusals) to include increased rights of doctors at the detriment of rights for patients. Some do not require referrals -- a doctor is not required to give a woman, gay or elder patient a meaningful referral for services -- or informed consent -- a doctor is not required to tell a woman, gay, or elder patient all of their medical options. Some are renewed annually because they are attached to federal funding (hence the phrase "no federal funding for abortion," which is not factual: the clause only applies to Medicaid funds but exemplifies the slow creep of these laws).

I note women, gays and elders because these are the groups most often targeted by provider refusals. Here's a brief history of the federal laws that are currently on the books:

In 1976 the Hyde Amendment established that no federal monies allocated to Medicaid could be used to pay for abortions. Hyde, renewed each year, has been challenged in the courts numerous times and upheld (see Maher v. Roe .) The language has become more limiting over the years and during the health care debate, feminists had to admit that their historical acceptance of this law allowed it to morph into blatant discrimination against the poor. They have renewed their calls for overturning Hyde.

The first of the provider refusals, or so-called “conscience clauses,” the 1973 Church Amendment, named for Frank Church (D-ID), protects health care “entities” or individuals who accept Medicaid from discrimination for their choice to perform or not perform abortions. States enacted their own subsequent laws and today, according to the Guttmacher Institute , 46 states allow providers to refuse abortion services. Forty-three allow institutions to do so.

Republicans gained majority in the House in the 1994 elections for the first time since 1954, initiating a new wave of abortion restrictions. The 1996 Coats Amendment was a reaction to the requirement made by the accrediting body for OB/GYNs that students must receive abortion training. Congress stepped in to preempt the requirement.

In 2005, the annual Weldon Amendment was first attached to the appropriations measure that funds the Labor, Health and Human Services and Education departments. It stipulates that neither individuals nor “health care entities,” can be discriminated against for refusing to pay for, cover, or refer for abortion services.

And in December of 2008, what’s been called a “parting gift” from the Bush administration, the greatest expansion of refusal laws was enacted with support from the  U.S. Conference of Catholic Bishops (USCCB) and the  Catholic Health Association. In essence, it sold patients down the river and gave religious providers (individuals  and institutions) not only the right to deny services but information about or referrals for them.

Since the Obama administration addressed the “conscience clause” last year the Catholic Church has mounted a campaign to retain it . Without such protections, the Church would lose the ability to dictate the services its providers perform and its more than 100 million annual patients receive.