«Refusal Laws: Dangerous for Women’s Health Refusal laws (sometimes called “conscience” laws) permit a broad range of individuals and ...»
Refusal Laws: Dangerous for Women’s Health
Refusal laws (sometimes called “conscience” laws) permit a broad range of individuals and
institutions—including hospitals, health-care providers, pharmacists, employers, and insurers—
to refuse to provide, pay, counsel, or even refer for medical treatment.
This fact sheet discusses the history of refusal laws, current legislative activity on refusal laws,
and some of their many effects on Americans’ ability to access quality, comprehensive health care. (For more detail about each of the specific laws, please see the fact sheet, Current Refusal Laws.) The Origin of Refusal Laws Anti-choice lawmakers and activists began enacting refusal laws immediately after Roe v. Wade.1 In response to Roe, in 1973 Congress adopted an amendment named after then-Sen. Frank Church (D-ID), allowing individuals or entities that receive certain federal funds to refuse to provide abortion or sterilization if such services are contrary to their religious or moral beliefs.2 In 1974, the statute was amended in a bill authorizing biomedical and behavioral research and training to include broad language stating that no individual may be required to perform or assist in performing health-care services or research activities funded by the Department of Health and Human Services (HHS). Following Congress’ lead, 47 states and the District of Columbia passed laws that permit certain medical personnel, health facilities, and/or institutions to refuse to provide abortion care,3 most of which were enacted shortly after Roe.4 In the years following, lawmakers enacted refusal laws only in isolated circumstances. 5 Legislative and Executive Activity Regrettably, over the last 10 years, there has been a resurgence of legislative and executive activity at the federal level related to refusal laws.6 Current Federal Law In 2004, anti-choice members of Congress passed a sweeping law known as the Federal Refusal Clause (also known as the Weldon amendment), which permits health-care companies to refuse to comply with federal, state, and local laws and regulations that pertain to providing, counseling for, referring for, and paying for abortion services. In other words, it grants a broad variety of health-care entities—including hospitals, insurance companies, and even individual health-care professionals —the right to refuse to provide, pay for, or refer for abortion (for more information see the fact sheet, The Federal Refusal Clause - Endangering Women's Health). 7 In December 2008, the Bush administration’s HHS published a regulation that further expanded refusal rights; the regulation offered broad rights to employees who were only tangentially involved in providing the services at issue (for example, receptionists scheduling appointments).8 On February 18, 2011, the Obama administration rescinded the key elements of this Federal Refusal Rule.9 The rescission eliminated the rule’s troublesome definitions that could have been interpreted to allow health-care providers to refuse to provide contraception in addition to abortion care. The repeal clarified that federal refusal laws were not intended to allow providers to refuse to treat an individual because he or she engaged in behavior the provider found objectionable. The administration also rescinded the rule’s burdensome certification requirement imposed on health-care organizations. The regulation retained only the section of the Federal Refusal Rule that provides for an enforcement process, establishing that the Office of Civil Rights at HHS is authorized to receive and investigate complaints regarding alleged violations of federal refusal statutes.
Anti-Choice Efforts to Expand Refusal Laws
After the Federal Refusal Clause was enacted as part of the FY’05 Omnibus Appropriations bill, anti-choice lawmakers looked for ways to expand it even further.10 For several years, they tried unsuccessfully to put the Federal Refusal Clause into permanent law. Then, in 2011, anti-choice Sen. David Vitter (R-LA) introduced an updated version of a longstanding anti-choice bill, the Abortion Non-Discrimination Act (ANDA), which would both expand and make permanent the Federal Refusal Clause.11 As noted above, enforcement of the Federal Refusal Clause is handled through the Office of Civil Rights (OCR) at HHS. ANDA would expand current law by creating a private right of action that would allow any health-care company to make an end run around OCR and file a lawsuit in court for any actual or even threatened violations. In addition, ANDA would extend the scope of the Federal Refusal Clause to allow those who “participate in” the provision of abortion care to refuse. This vague language is reminiscent of the Bush rule and could allow those only tangentially involved in care to refuse a woman services – for example, an ambulance driver could refuse to take a woman in an emergency situation to an abortion clinic. Although this dangerous legislation has not passed either chamber, ANDA language has been included in each of the proposed House Labor-HHS appropriations bills annually introduced since 2011.12 In 2013, anti-choice Rep. Diane Black (R-TN) and then-Sen. Tom Coburn (R-OK) introduced an even more extreme refusal bill, the Health Care Conscience Rights Act (HCCRA).13 This legislation includes ANDA and goes much further – it would significantly undermine multiple provisions of the Affordable Care Act (ACA). HCCRA would allow individuals or businesses to refuse to purchase health-insurance plans that include coverage of any service they find objectionable on any grounds whatsoever; allow insurers to refuse to offer health-insurance plans that cover any service they find objectionable on any grounds whatsoever; and create a private right of action that is so broad it would allow virtually any individual or institution in our health-care system to file a lawsuit seeking any kind of remedy (including monetary damages) in court for any actual or even threatened violations. These provisions would effectively gut the ACA's preventive-health and contraceptive-coverage benefits. Although HCCRA has not passed either chamber, it has been included in the proposed House FY’16 Labor-HHS appropriations bill.14
Broad Loopholes = Access Denied
Carefully crafted refusal laws may be appropriate in some circumstances to protect individual medical providers. However, broad refusal laws have negative consequences by denying women medically necessary information, referrals, or services. For example, broad refusal laws
employers who oppose birth control on religious grounds to refuse to provide contraceptive coverage in their health plans, even when employees do not share the same religious views as their employer;
pharmacists who erroneously believe that birth-control pills cause abortion to refuse to dispense, or provide referrals for, lawfully prescribed oral contraceptive medications;
health-care professionals who object to contraception or abortion to deny their patients information on, or a referral for, family-planning services, regardless of the patient’s health-care needs; and/or health-insurance companies that object to contraception or abortion to refuse to provide coverage of these benefits in the health plans they offer.
Refusal laws also can affect a broad range of reproductive-health services, including:
information and referrals for family planning, genetic counseling, infertility treatment, sexualassault treatment, sterilization, STD and HIV testing, and abortion care.
Comprehensive Medical Information—Not Politics, Religion, or Ideology— Should Determine Health-Care Decisions Health-care providers have a duty to ensure that women receive accurate information and appropriate care. Failure to provide this care—whether for religious, political, or ideological reasons—jeopardizes women’s health and violates bedrock principles of medical ethics.
Refusal laws violate informed consent principles. When health-insurance companies and managed-care plans withhold information from women about their health options, they trample on a bedrock principle of medical ethics: informed consent. Under this doctrine, patients must be informed of the risks, benefits, and alternatives to treatment.
The American Medical Association has emphasized, “The patient’s right to self-decision can be effectively exercised only if the patient possesses enough information to enable an intelligent choice.”15 Failure to provide full information about all relevant medical options violates standards of care. In Brownfield v. Daniel Freeman Marina Hospital, a court ruled that a rape survivor who was denied information about emergency contraception at a Catholic hospital emergency room could sue for medical malpractice. The court asserted that a woman’s right to control her treatment must prevail over [a hospital’s] moral and religious convictions.” Further, it is the hospital’s duty to provide full information about all medical options in order to protect patients’ right to choose whether to undergo medical treatment. As the court stated, “Meaningful exercise of this right is possible only to the extent that patients are provided with adequate information upon which to base an intelligent decision.”16 Institution-wide refusal laws can, paradoxically, trample on the consciences of individual health-care providers. For example, if a legislature enacts a broad refusal law for insurance companies, an insurer may refuse to cover sterilization counseling, referrals, or services. A physician in such a plan who determined that a patient faced life-threatening circumstances if she became pregnant again and that sterilization would be in her best interests would be prohibited from providing the woman with appropriate information, referrals, or treatment. This tramples not only on the conscience rights of the patient but also on those of the doctor. Anti-choice activists, who often claim to care about doctors’ consciences, conveniently ignore this consequence.
Refusal Laws Create Barriers to Care and Endanger Women’s Health When health-care institutions and providers deny women access to all of their health-care options, they can compromise women’s health.
Of course, pregnancy is a welcome development in many women’s lives. But for some others, pregnancy can be dangerous, making access to contraceptives and abortion services imperative. For instance, conditions such as cancer, rheumatic fever, severe diabetes, malnutrition, phlebitis, sickle cell anemia and heart disease, significantly increase the risks associated with pregnancy.17 Low-income women and women of color who depend on federal programs for affordable health care, such as Medicaid and Title X, are disproportionately impacted by broad refusal laws. These women face several barriers to health-care services, such as geography and poverty, which make it particularly difficult for them to find another doctor in the event that a provider refuses to offer services and an inability to find a provider can endanger women’s health. Problems finding alternate providers are exacerbated for low-income women who face twice as much difficulty as other women in obtaining the flexible work schedules, transportation, and child care necessary to see a doctor.18 Women in rural areas may face serious health risks if the only hospital in their area refuses to provide certain reproductive-health services. One Catholic sole-provider hospital in rural California denied a sterilization to a 34-year-old woman following her ninth pregnancy. Although the woman’s doctor advised her against any subsequent pregnancies, and sterilization would have been safest and easiest immediately following delivery, the hospital refused to permit the procedure.19 Some women don’t even know that their reproductive-health options are limited at their local hospital until they need care. In August 2015, Rachel Miller was pregnant with her second child. She and her husband agreed that they only wanted two children so she decided to have a tubal ligation after giving birth. However, her hospital was owned by a Catholic health group and it refused to allow her doctor to perform the procedure, which it objected to for religious reasons. Fortunately, the ACLU threatened a lawsuit on Rachel’s behalf and the hospital granted her an exception – but not every woman is that lucky.20 Fifty-five percent of Catholic hospitals do not provide emergency contraception—a concentrated dose of ordinary birth control pills that prevents pregnancy after sex— even to women who have been raped.21 This is particularly problematic given that 20 percent of all hospital beds in health systems are owned or operated by the Catholic Church.22
Mergers in the Health-Care Industry Exacerbate the Impact of Refusal Laws