Conscience protection gap in healthcare overhaul law poses threat to poor patients

Where does the new healthcare overhaul law leave healthcare professionals regarding the exercise of their conscience rights? How might it impact the poor patients now served by faith-based professionals and institutions?
In the complicated process of evaluating legislative language, it’s difficult to just read the text and figure out what’s wrong, because the devil is in the details of what has been left out rather than what has been left in. One of the most helpful tools in analyzing a bill is to compare the bill that passed with amendments (and other bills) that did not pass.
First, a bottom-line summary:

1. Conscience protections only apply to abortion, not to all the other ethical challenges healthcare professionals face, often on a fairly regular basis.
2. The non-discrimination language of the law just passed applies only to discrimination under a health insurance plan. Compare this language to the House-passed language (which did not become law), which also importantly prohibits governments from discriminating.
3. Nothing is mentioned to prevent discrimination in training for abortions. The Coburn amendment included this language, which the Senate rejected.
4. President Obama's Executive Order does nothing whatsoever beyond what already exists in law (which his administration is loath to enforce) and what the Senate bill already contained.

Second, a detailed summary of relevant conscience provisions in the law, in the House-passed bill that did not become law, and in the conscience amendment offered by Sen. Tom Coburn, MD (R-Okla.) that did not become law. Examining the legislative language below—paying special attention to highlighted items—reveals not only what language survived the final bill that was passed, but also (even more revealingly) what language did not survive in the final bill that is now law:

Senate bill (now law) – HR 3590
SEC. 1303. SPECIAL RULES.
(p. 45 of the Senate Manager's Amendment)‘‘(4) NO DISCRIMINATION ON BASIS OF PROVISION OF ABORTION.—No qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions.

Now take a look at the conscience provisions that did not become law:

House-passed bill HR 3962 (did not become law)
“Affordable Health Care for America Act”
SEC. 259. NONDISCRIMINATION ON ABORTION AND RESPECT FOR RIGHTS OF CONSCIENCE.(a) NONDISCRIMINATION.—A Federal agency or program, and any State or local government that receives Federal financial assistance under this Act (or an amendment made by this Act), may not—
(1) subject any individual or institutional healthcare entity to discrimination; or
(2) require any health plan created or regulated under this Act (or an amendment made by this Act) to subject any individual or institutional health care entity to discrimination, on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.
(b) DEFINITION.—In this section, the term "health care entity" includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.
(c) ADMINISTRATION.—The Office for Civil Rights of the Department of Health and Human Services is designated to receive complaints of discrimination based on this section, and coordinate the investigation of such complaints.

Sen. Tom Coburn, a physician and Republican from Oklahoma, offered the following comprehensive conscience amendment, which lost along party lines.

Coburn Amendment #2967 (not passed)
Purpose: To ensure health care providers are not forced to participate in abortions or discriminated against because they choose not to do abortions.
On page 124, line 1 insert ‘‘OTHER’’ before ‘‘FEDERAL’’.
On page 124, line 4, insert ‘‘other’’ before ‘‘Federal’’.
On page 124, between lines 22 and 23, insert the following:
SEC. 1304. NONDISCRIMINATION ON ABORTION AND RESPECT FOR RIGHTS OF CONSCIENCE.
(a) NONDISCRIMINATION.—A Federal agency or program, and any State or local government, or institutional health care entity that receives Federal financial assistance under this Act (or an amendment made by this Act), shall not—
(1) subject any individual or institutional health care entity to discrimination; or
(2) require any health care entity that is established or regulated under this Act (or an amendment made by this Act) to subject any individual or institutional health care entity to discrimination, on the basis that such health care entity does not provide, pay for, provide coverage of, or refer for abortions.
(b) DEFINITION.—In this section, the term ‘‘health care entity’’ includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, a plan sponsor, a health insurance issuer, a qualified health plan or issuer offering such a plan, or any other kind of health care facility, organization, or plan.
(c) ADMINISTRATION.—The Office for Civil Rights of the Department of Health and Human Services is designated to receive complaints of discrimination based on this section, and coordinate the investigation of such complaints.
Effect of Coburn Amendment on Reid Bill’s Language
 [adds the word “other” to current Reid provisions]
(2) NO EFFECT ON OTHER FEDERAL LAWS REGARDING ABORTION.—
(A) IN GENERAL.—Nothing in this Act shall be construed to have any effect on other Federal laws regarding—
(i) conscience protection;
(ii) willingness or refusal to provide abortion;
and
(iii) discrimination on the basis of the willingness or refusal to provide, pay for, cover, or refer for abortion or to provide or participate in training to provide abortion.
[inserts the following new section]
SEC. 1304. NONDISCRIMINATION ON ABORTION AND RESPECT FOR RIGHTS OF CONSCIENCE.
(a) NONDISCRIMINATION.—A Federal agency or program, and any State or local government, or institutional health care entity that receives Federal financial assistance under this Act (or an amendment made by this Act), shall not—
(1) subject any individual or institutional health care entity to discrimination; or
(2) require any health care entity that is established or regulated under this Act (or an amendment made by this Act) to subject any individual or institutional health care entity to discrimination,
on the basis that such health care entity does not provide, pay for, provide coverage of, or refer for abortions.
(b) DEFINITION.—In this section, the term ‘‘health care entity’’ includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, a plan sponsor, a health insurance issuer, a qualified health plan or issuer offering such a plan, or any other kind of health care facility, organization, or plan.
(c) ADMINISTRATION.—The Office for Civil Rights of the Department of Health and Human Services is designated to receive complaints of discrimination based on this section, and coordinate the investigation of such complaints.

At the end of the day, Congress passed and the President signed into law a bill that only gave as much of a nod to conscience rights as was deemed politically necessary to minimize opposition to the legislation. 

The gap leaves healthcare professionals, and especially faith-based physicians, nurses, hospitals and clinics, vulnerable to all forms of discrimination by governments and on a host of ethical issues beyond abortion. 

The long-term result of this gap of protection may well be the forcing out of faith-based professionals and institutions from medicine, resulting in the loss of the vital healthcare services for the poor that they provide.

Pols push embryo-destructive cloning research

Advocates for conscience rights in health care have noted that the meager conscience provision in the recently passed healthcare legislation not only does not prevent government discrimination against pro-life professionals; it also applies only to abortion. Physicians, medical researchers, nurses and healthcare institutions face all kinds of ethical challenges besides abortion. These ethical challenges include reproductive technology, in vitro fertilization (IVF), and the deliberate destruction of human embryos for research purposes.

These challenges will increase, if pro-abortion politicians have their way. I recently received this alert from a pro-life colleague on Capitol Hill:

Reps. Diana DeGette (D-CO)  and Mike Castle (R-DE) have introduced the Stem Cell Research Advancement Act (H.R. 4808). Under the guise of making the current Obama Administration’s National Institutes of Health (NIH) guidelines permanent, the bill,  HR 4808,  actually goes much further than the current regulations and further than any embryo destructive research bill approved by the Congress so far by providing broad authorization for research that implicitly goes well beyond research on stem cells from so-called “leftover embryos” and would provide a basis for research on stem cells taken for cloned embryos and embryos created solely for the purpose of destruction.
Embryos Created by IVF (in-vitro fertilization):  These guidelines are opposed by pro-life leaders because they incentivize embryo destruction by offering federal funds for research on stem cells derived by destroying a human embryo.  At this time the regulations are focused on research that involves embryos created for fertility purposes.  However, H.R. 4808 directs the Secretary to “conduct and support research that utilizes human stem cells, including human embryonic stem cells” without limiting the scope to only cells taken from so-called “leftover” embryos.  A later section also directs the Secretary to update stem cell guidelines “as scientifically warranted” providing an open door for research on stem cells from other sources such as embryos created solely for research purposes.
Human cloning: While the bill states “Prohibition- The Secretary shall not use any funds for the conduct or support of human cloning.” the bill redefines the actual definition of the cloning process as follows: “the term `human cloning’ means the implantation of the product of transferring the nuclear material of a human somatic cell into an egg cell from which the nuclear material has been removed or rendered inert into a uterus or the functional equivalent of a uterus.  Cloning actually takes place at the moment the cloned embryo is created using a process known as somatic cell nuclear transfer (SCNT).  This implantation definition allows funding for research on human cloned embryos as long as the clone is destroyed and not allowed to survive, thus rewarding cloning (SCNT) of human embryos with the promise of taxpayer dollars for research on the stem cell lines they create.

Pro-life leaders on Capitol Hill encourage constituents to urge Members of Congress to support  the following two bills:

• Human Cloning Prohibition Act of 2009 (H.R. 1050), which would ban creating cloned embryos by somatic cell nuclear transfer.  The bill is a total ban on human cloning.
• Patients First Act of 2009 (H.R. 877)—by Rep. Lipinski (D-IL) and Forbes (R-VA) that prioritizes stem cell research toward treating and curing patients, by promoting research and human clinical trials using adult stem cells that show the most potential of providing clinical benefit and are ethically obtained.

Note also this speech Rep. John Fleming (R-LA) on  stem cell research.

Medical journal: Healthcare bill may trigger "Financial Armageddon"

The New England Journal of Medicine this month features a startling commentary on healthcare reform entitled, "The Specter of Financial Armageddon — Health Care and Federal Debt in the United States."
The authors declare at the outset, "The most important force shaping the U.S. health care system over the coming decades may well be the federal debt." Other highlights [emphases added]:

The United States has a substantial, growing structural deficit, much of which reflects current and projected increases in federal spending on Medicare and Medicaid. This federal health care spending amounted to 5% of the gross domestic product (GDP) and 20% of federal outlays in 2009 and is forecast to reach 12% of the GDP by 2050.1 Health care spending is thus a key driver of long-term debt.
To finance this debt, the government issues interest-bearing bonds. Doing so imposes several economic costs. First, interest payments consume an increasing share of income (1.3% of the GDP in 2009, or 5.3% of total federal spending), thereby reducing the resources available for public programs. Second, growing debt can lead to higher interest rates for all borrowers (government, businesses, and individuals), thus impeding economic growth. Finally, high debt reduces our capacity to respond to sudden economic shocks and magnifies the detrimental effects of any deficit.
The consequences of high debt levels depend on the treatments that policymakers prescribe. One approach is generating inflation to erode the value of the debt, but the adverse economic consequences  of this strategy can be severe. Another option is raising taxes.  Taxes reduce economic growth.
The economic stresses apparent in Greece and in California provide some glimpse into what such a fiscal Armageddon might bring.
The clear implication for health care reform is that as we evaluate options (or the possibility of maintaining the status quo), we should focus on the path to a sustainable fiscal situation rather than on short-run deficits.
If all the money saved through reductions in future spending on existing health care programs were devoted to new health care programs, our fiscal situation would be little improved. Similarly, if other fiscal tools, such as tax increases, are used to cover new programs, those tools will not be available to achieve broader reductions of the structural deficit. Thus, although covering the uninsured is a laudable policy goal that would improve access to health care for many, it would also add substantially to our structural spending and thus necessitate more draconian fiscal austerity elsewhere.

To avoid or dampen the severity of the apocalyptic economic projections, the authors conclude with a number of strategies to prevent the coming catastrophe, including:

• Address and reduce fraud and abuse within the Medicare program.
• Enact malpractice reform.
• Invest in information technology and comparative-effectiveness research.
• Invest in prevention.

All this to say, "There ain't no such thing as a free lunch." Especially in a time of economic crisis, a nation simply cannot continue to recklessly increase spending--no matter how laudable the social goal may be--without significant financial consequence.
Liberal lawmakers may expect their healthcare bill to redistribute wealth. Instead, their socialistic policies stand to translate into much less wealth to redistribute. Healthcare hyper-regulation, insurance mandates and penalties will only drain the prosperity from the wealth- and job-producing sectors of the economy.
Grace-Marie Turner of the Galen Institute illustrates this effect:

As we wrote in the Chicago Tribune on Friday, the New York-based consulting firm Towers Watson conducted a study that found the tax change impacting retiree drug benefits will cost companies $14 billion in future years.

If economic projections hold true, absent true healthcare reform, the flood of joblessness will not subside, the natural curve of economic recovery will peak at a much lower point, and crippling debt will crumble our long-term economic foundation.
The next financial downturn could prove catastrophic.
Financial realities such as these explain why "liberal compassion" is an oxymoron. The liberal tendency to "tax and borrow to spend" ultimately leads to economic disintegration, and the poor suffer most in an economic meltdown.
The USA desperately needs a strong dose of fiscal tough love to turn back disastrous healthcare policies that are marching us toward a Megiddo mountain of debt. We must repeal bloated bureaucracies based on borrowing and chart a course for a future in which we can safely and surely expand care for the poor from a position of economic strength.
This is no time to wring our hands. Let's arm ourselves with the facts, educate our friends and colleagues and help elect economic realists who will take the tough and courageous steps needed to stave off the coming financial Armageddon.