Saturday, April 24, 2004

"Conscientious Objector Policy Act"
Serious Flaws With Bizarre Michigan Legislation

It is not common for legislation in Michigan to attract much attention.  However, the recent action on Michigan Senate Bill 972, and associated legislation, have generated several news items and blog posts around the country.  Because this is something that affects me personally, and because the Legislation is so obviously flawed -- in addition to having a bizarre twist at the end, I have surveyed the various points made by the denizens of the Blogosphere.  Here is the preamble for the bill:

Michigan Senate Bill 972

A bill to provide standards for personnel policies to protect the right of conscience of health care providers who conscientiously object to providing or participating in certain health care services under certain circumstances; to provide for protection from certain liability; and to provide for penalties and remedies. 

The legal website Yclipse  provides a guide to the four related bills:

HB 5006 protects any individual health care provider, such as a pharmacist, nurse, or doctor, from being fired or disciplined over refusal to perform acts, such as participating in an abortion or filling a prescription for an abortion drug.

Two other bills, HB 5277 and HB 5278, "would allow insurance companies to likewise exempt themselves from medical practices they find morally objectionable." HB 5277 covers "health care corporations", and HB 5278 covers insurers and HMOs. The operative language in each is:

Notwithstanding any other provision of law, [an entity] may refuse to offer or provide a health care benefit that violates an ethical, moral, or religious principle reflected in its articles of incorporation, bylaws, or an adopted mission statement.

For the duration of this article, I will refer to the entire package of bills as "the Legislation."  The current status and text of the Senate bill can be found here; the House bill status is here

Notice that the State of Michigan website also provides a link to a Legislative Analysis:

HFA - Legislative Analysis
Summary (3-222-04)
This document analyzes: HB5006, HB5276, HB5277, HB5278
Load the PDF VersionLoad the Text Version

The date, 3-222-04, indicates that it was one very long  congressional session.  I'm glad I didn't have to sit through the entire thing.  I thought the Chicago White Sox & Milwaukee Brewers baseball game at Comiskey Park, 05-09-1984, was long.  That game went for 25 innings.  Having to add 191 days to the month, just to finish a piece of legislation,  must have been awful. 

Loose tangents aside, this is a serious matter; not only because of what the Legislation itself does, but also because it indicates how susceptible the Michigan Congress is to ideological influence. 

An AP news article explaining the Legislation is here:
Michigan House backs conscience rights for health-care workers
By The Associated Press

LANSING, Mich. — The state House has voted to protect health-care workers and insurers from being fired or sued for refusing to perform a procedure, fill a prescription or cover treatment for something they object to for moral, ethical or religious reasons.

The measures would apply to doctors or nurses who decline to perform or assist with abortions and to pharmacists who refuse to fill prescriptions for morning-after pills.

The Republican-controlled House overwhelmingly approved the four-bill package as dozens of Catholics looked on from the balcony.

The Michigan Catholic Conference, which pushed for the bills, hosted a legislative day for Catholics yesterday at the state Capitol. The Catholic Church opposes abortion and birth control. [...]

Gaywired.com, a website with gay-oriented articles, reprinted the AP story, using the headline, Michigan Preparing To Let Doctors Refuse To Treat Gays365Gay.com  added editorial content to their reporting on the Legislation:

Opposition Mounting Michigan Bill That Could Deny Gays Health Care
by 365Gay.com Newscenter Staff

Posted: April 23, 2004 5:32 p.m. ET

(Lansing, Michigan)  Some Michigan legislators are calling for amendments to a bill passed in the state House this week that could allow doctors and nurses who object to homosexuality to deny gays treatment or prescription drugs.

As reported first by 365Gay.com, the Conscientious Objector Policy Act would allow health care providers to assert their objection within 24 hours of when they receive notice of a patient or procedure with which they don't agree. However, it would prohibit emergency treatment to be refused. (story)

The bill was aimed at allowing doctors opposed to abortion or stem cell research to refuse the procedures, but opponents of the legislation say it is so loosely worded it could be used to refuse treatment to gays.  

During debate in the legislature Rep. Chris Kolb (D-Ann Arbor) the first openly gay legislator in Michigan, pointed out that while the legislation prohibits racial discrimination by health care providers, it doesn't ban discrimination based on a person's sexual orientation. [...]

I doubt that the bill was intended, originally, to have anything to do with the civil rights of homosexuals.  But since Rep. Kolb raised the issue during debate, and it was not addressed, it does give the appearance that the Michigan Congress is not concerned about this aspect.  Either that, or they are concerned, but only insofar as it affects their re-election prospects. 

Not all reporting was critical of the Legislation.  LifeSite.com, which presumably is a pro-life/anti-abortion site, has the following report:

LifeSite Daily News
Thursday April 22, 2004

Michigan House Votes in Favor of Conscience Clause
Law would also protect pharmacists from reprisals

LANSING, April 22, 2004 (LifeSiteNews.com) - The state House has voted to introduce conscience legislation to protect medical professionals from being fired or sued for failing to participate in procedures they are morally opposed to. The Conscientious Objector Policy Act allows for a period of 24 hours from the time a worker receives notice of a request to perform a procedure in which to object.

The law not only applies to health-care workers such as doctors and nurses, but also to pharmacists who will now be protected from reprisals for not filling prescriptions that conflict with their moral and religious beliefs. Pharmacists will not be exempted from filling prescriptions for the birth control pill, however. [...]

The sponsor of the primary bill, Republican Rep. Randy Richardville, in response to criticism from Democratic representatives that the bill would restrict patients' rights, said "Nothing in this bill, not a thing, denies a patient from receiving medical care. This simply means a medical professional cannot violate their religious obligations."

Rep. Richardville uses unfortunate wording here, "Nothing in this bill, not a thing, denies a patient from receiving medical care. This simply means a medical professional cannot violate their religious obligations."  The Legislation does not say that a professional cannot violate her or his religious obligations; rather, it says that a professional may choose to follow his or her religious conviction without fear of certain kinds of reprisal.  The other part of what he said simply is not accurate.  It leads me to wonder if he thought through the implications of the Legislation.  There are some areas where there are either very few physicians, or they all have the same religious convictions.  In such an area, a patient could very well be in the position of having care denied.   This is a serious problem with the legislation.  Many insurance plans provide a limitation on what doctors a person can see, or limit the geographic area in which care can be sought.  (There are exceptions for emergency care out of area.)  It is likely that there will be situations in which a patient does not have a realistic option available, because of these kinds of limitations. 

What about blogger commentary, which always is more interesting?  The popular medical blog, Medpundit, has a slightly positive take  on the Legislation: 

A gay person isn't a procedure or a service, he's a patient. That doesn't mean the doctor can refuse to treat a homosexual for heart disease, or an infection. It does mean that the doctor could refuse to, say, sign off on an adoption physical for a homosexual patient, or refuse to perform artificial insemination for a lesbian or a single mother. Is that discrimination? Maybe. But it's not nearly the blanket rejection of homosexuals that the first story made it seem.

To place this excerpt in context, Dr. Sydney Smith was comparing the text of two news articles on the subject.  To place it in a larger context, note that the American Medical Association Code of Medical Ethics  (section E 2.05) contains this statement: 

In the case of single women or women who are part of a homosexual couple, it is not unethical to provide artificial insemination as a reproductive option.

The AMA did not state explicitly that it would be unethical  to refuse to provide this service to homosexuals.  I don't know what their silence means.  Perhaps they assume that they do not need to specify that such a refusal would be unethical.  My guess is that their committee did not want to go so far. 

(note: you can download the entire AMA Policy, including the Code of Medical Ethics, from the AMA website.  This is the link; it is over 8Mb.  You have to agree to their disclaimer before you can download it.)

Andrew Sullivan comes out with a criticism  of the Legislation:

COMPASSIONATE CONSERVATISM: A Catholic and Republican initiative in Michigan will allow doctors to refuse treatment to any person of whom they morally disapprove. I can see why some doctors should be allowed to refuse to perform abortions on moral grounds (except I doubt that any doctors are routinely put in that position). But the sweeping nature of this bill is clearly aimed at allowing doctors to refuse care to homosexuals (there is an exception barring refusal of care on racial grounds). [...]

I have yet to read a conservative denunciation of this. Just as I have yet to see this president do anything to distance himself from the hatred coming from some parts of his own party. Why should it always be up to gay people to point this out? Are there no straight people prepared to stand up against this kind of thing in the G.O.P.?  

I can't agree that it "is clearly aimed at allowing doctors to refuse care to homosexuals".  However, I have no doubt that this will be the effect in some situations.  Yclipse casts a shadow  on Mr. Sullivan's point. 

This proposed law protects a person who objects to providing a health care service that is objectionable. It mentions nothing about a patient who is objectionable to the provider.

This is true, but in practical terms, it is irrelevant.  If a physician refuses to do artificial insemination for a lesbian, citing a moral objection, is it clear that the law not apply?  If a physician does refuse, will the patient have the legal resources to go to court and fight it out?  The point is that the Legislation imposes a barrier to health care.  Even if the the patient would eventually win a challenge in court, there still is a barrier.

Atrios at Eschaton  chimes in, adding a rather brazen title: The Taliban in America.  After quoting the news article, he concludes:

If this law passes, I will personally help compile the wall of shame so we can frequently and loudly object to anyone who thinks they have the moral right to do this.

Lean Left has the following inclination:

This is not about religious freedom. This is about bigotry, pure and simple. This is the modern equivalent of the laws that prevent people form selling their homes to Jews in the first half of the twentieth century. This is vile and disgusting, and it is supported by the Michigan Republican Party -- the party of hate once again, it appears. And the Catholics who supported this disgusting measure of hate should be ashamed of themselves. Denying care to the sick and the dying is the least Catholic thing I can think of.
One of the comments on Lean Left, by Len Cleavelin,  amplifies this:

The Michigan Catholic Conference pushed for this?  If the Pope doesn't immediately put Michigan under an interdict until they shitcan this measure, there's no justice on Earth.  Damn, I'm so proud I left the Church. This is disgusting.

The Dutch weblog, SILT, adds a bit more vitriol:


Prodded by the Catholic Church, the Michigan House has passed a law that would permit health-care providers to refuse to provide services to homosexuals.

And so Christo-Fascism marches inexorably on.

Lara, at The Diary of Elle Wiz, has a strongly worded entry:

This is insane. This cannot possibly be constitutional. Someone please appeal this!

Chad's Weblog offers a more moderate, but still negative, view  of the Legislation: 

The real disturbing part is where the bill states that health care workers can refuse service to anyone on moral, ethical or religious grounds. In short - they don't have to service anyone they don't like. Wouldn't that be weird if other jobs out there allowed you to do the same - such as McDonalds - where you only served the people you liked at the drive through window...

Doug, at George W. Bush, Will You Please Go Now?!, dismisses  the entire State because of the Legislation:

Congratulations, Michigan: You've just made me proud that I live in Alabama. On the other hand, I'm not especially proud to be Catholic right now:

James, at jameswagner.com, does not come down so hard on Michigan as he does on the Catholic Church.  Excerpt from his post:

But it's 2004! Why do we still have to deal with this accursed thing? I've absolutely had it with the abominations of the Catholic Church, and don't get me started on all the other monstrously evil cults which compete with it in advancing fear and superstition in this benighted land and around the world.

[...] If these idiots want religious war, I think we should let them have it. I'm in.

Sam, at mad LIFE, seems rather upset  by the whole thing:

So tired of all the bullshit. It's exhausting. I don't have the will to even talk about much of it anymore - you may have noticed my lack of blog entries with any substantial information, esp. anything about politics. The truth of the matter is that I am quickly losing hope. One day, I began to entertain the idea that I might hate America, just a little, little bit. And every day, I think I start to hate it just a little bit more (by "America," I mean a lot of stupid people)

[...]  God bless the USA, where freedom rings so loud that the majority & the rich can do whatever they want.

On the blog King of Zembla, Simbaud proclaims:

In Other News, Jesus Wept
Via Atrios. I haven't seen the actual language of the bill, but if the description below is accurate, wouldn't it allow a doctor to withhold treatment from Catholics?

[...]  Our esteemed colleagues at Musing's Musings report that Colorado is just as bad. Is there a national movement afoot to deny medical care to minorities that happen to be out of favor with the Republican party? And what was the last country to adopt a national eugenics policy?

Was it by any chance the one my old man went to war against?

A thoughtful and moderate opinion is snarled  by Robin at Giant Grizzly Twists And Shouts.  This resonates with my concern about the Michigan Congress being susceptible to ideological influence: 

As part of a special "you ask for it we'll give it to you" legislative day for Catholics, the state of Michigan has just passed legislation that will allow any Doctor or health care worked the right to refuse to treat anyone on the grounds of moral, ethical or religious grounds. They cannot be sued. They cannot be disciplined. You cannot complain, but you can die.

There something deeply offensive about a religious organization controlling a state's legislative program in such a country as America where people are allowed to have religious freedom.

I am truly shocked that such a Bill can be passed in America.

At A Man with a Ph.D. - Richard Gayle's Weblog,  we find the following thesis:

So, how is someone supposed to 'know' someone is gay, or a Catholic, or living with someone. Those are all questions that are not allowed to be asked before providing health. Will your ability to get healthcare depend on gossip and innuendo, then? It is scary to believe that my ability to receive medical care will be solely determined by the moral, ethical and religious views of the health care workers, not on my need. It must be nice to be allowed to enter an industry where you can opt out of a procedure simply by saying doing so would violate my sincere belief that disease is a curse from God, who will be the one to cure it. Insane.

A sarcastic but pointed version was floated on Push Fluids, a blog by three medical students.  I post the entire thing, partly for comic relief.  Medical students tend to have a strange sense of humor.

does manual disimpaction count as morally repugnant?

Dr. Quinn and I were apparently working in fits of righteous anger at the same time...

Here's a link to the bill passed the Republican-controlled house yesterday that she was talking about. The "Conscientious Objector Policy Act," would provide legal cover for a healthcare provider to refuse to treat a person, or perform a procedure, or prescribe a goddamn drug if it ran counter to their religious, ethical, or moral beliefs.

Awesome. So now all I have to do is graduate from medical school, do a quick residency, and then get a job at Planned Parenthood in Flint, MI. Then I can bust out with some newly found Catholic religious fervor and refuse to ever show up to work because it's an abomination before god. Those godless bastards won't have a legal leg to stand on when they try and can me! Yep. I'll be having fun in the legal protection of the Son (of man). (Sorry, I couldn't resist that last one. Yes, I know it's not even funny.)

In related news, California is working on passing a bill that protects clergy from being fired for refusing to preach the word of God or provide their congregations with those little Jesus crisps.

On a more serious note, also on Push Fluids, but by a different blogger, the following words flow:

some would argue that allowing physicians to refuse treatment of people who they would feel uncomfortable treating is better for the patients. but these people are wrong.

first, in a state like michigan, where there is a bible belt that is quite rural, there is a great possibility that gay people would have to travel long distances to find a physician willing to treat them. in addition, there is a greater risk to homosexuals who are in emergency situations. it is quite possible that this law could allow ER docs, and EMTs to refuse to treat someone who is homosexual in an emergency situation.

this is not an unheard of phenomenon. a woman named tyra hunter died in washington dc after a car accident. as she lay on the street, an EMT stopped treating her when he found that she had male genitals. robert eads was a female to male transsexual who died of ovarian cancer in georgia because he could not find an ob/gyn willing to take care of a transgender patient (there was an excellent HBO documentary about him). there are countless others (brandon teena, matthew shepard, etc.) who have died because people refused to help or protect them and allowed hatred and prejudice rule their lives.

i just don't know what to say about this. i'm tired. i'm just beside myself that there are people in this world so hateful.

Paul, at A Fortiori, adds even more anti-Michigan sniping:

Nice. Michigan is now officially off the list of "States I Might End Up Living In".

A Livejournal site, Feminist Rage, contains emotional -- but considered and nuanced -- commentary.  Here is a piece by Wiilowbean and a comment by ggdsbuckeye:

So doctors and nurses can refuse to give out or even talk about EC or birth control even if you ask for it. Pharmacists can refuse to fill birth control prescriptions. And my personal favorite, any health care provider can refuse to treat you if they believe you're gay. Because god forbid those horrid homos have access to medical care.

I can't even begin to process how outraged this makes me. Lesbians already have lower rates of seeking health care especially for things that can make a huge difference in health like annual paps. There's already enough bigotry and just plain old ignorance in the medical community about queers that creates barriers to care and now they want to go and make that not only legal (because since there's no anti-discrimination laws it already is) but legislatively encouraged.

[...] Furthermore, this bill does not contain any provision for referring the patient for requested services.

Feminist Rage is referring to emergency contraception with the acronym EC.  She is not quite right about the birth control.  The Legislation includes the following language:

Health care service does not include the provision of a contraceptive medication.

At first glance, this would appear to mean that neither birth control nor EC would be affected by the Legislation.  However, there is a peculiar specification:

"Contraceptive medication" means a medication approved for the prevention of pregnancy that is taken or used in advance of sexual intercourse. 

This specifically excludes EC, since EC is given after  intercourse.  Those that wish to argue that the Legislation is not ideologically influenced will have to explain the existence of this specific wording.  Most health care providers, and probably most randomly selected citizens, would not define "contraceptive medication" in this way. 

The last quoted line from Feminist Rage has to do with referral for services.  It is, presumably, a reference to the section that defines "participation" in a health care service:

"Participate" or "participating" means, at a minimum, to counsel, refer, perform, administer, prescribe, dispense, treat, withhold, withdraw, diagnose, test, evaluate, train, research, prepare, or provide material or physical assistance in a health care services.   . 

This means that a health care provider (or other person, such as a representative of a hospital or insurance company) could refuse to tell someone whether or not the requested service is available elsewhere, or even refuse to discuss it at all.  Personally, I find that highly offensive.  This would mean that a person could call her or his insurance company and ask about the coverage for a particular service, and the company person could refuse to discuss it. 

From The Republic of T., Terrence is teed off, as we see from these comments:

[...]  Here's my question for the Michigan Catholics who supported this bill. Was there anyone that Jesus refused to heal? Whom did he turn away?

For once, I am completely, and utterly speechless. This is just another example of how compassionate conservatism is a crock of shit.

Update: Apparently, the law bars health care providers from refusing service to those who belong to protected classes under Michigan law. Gays, however, are not protected from discrimination under Michigan law. So under this law, gays can be denied services by health care providers who morally object to homosexuality.

I cannot say whether Michigan law contains no provision for protection of civil rights of gay or lesbian persons.  I can, however, say that the Legislation does not:

A health care provider shall not assert an objection to providing or participating in a health care service based on the classification of a patient or group of patients protected under the Elliot-Larsen civil rights act, 1976 PA 453, MCL 37.2101 to 37.2804, or based on a disease or other medical condition.

The text that defines groups covered by the Elliot-Larsen civil rights act can be found here.  It does not offer any protection to homosexuals.

Kriston at Grammar.police writes a ticket for the Legislation:

The Hippocritical Oath

[...]  The site from which Atrios clipped focuses on the effect on the gay community, but remember that Catholics hate all sorts of people. I'd like to believe that anyone who's taken the Hippocratic Oath couldn't be so foolish or insincere to pay attention to this political pandering, but then only recently those Dallas pharmacists refused to fill prescriptions for contraceptives because of "personal beliefs." What's with the medical activism?

I disagree with the blanket statement that  "Catholics hate all sorts of people".  The point about the Hippocratic Oath requires some clarification.  It is widely believed that all doctors take The Hippocratic Oath.  That is not the case.  Also, there are many different versions of the Oath.  Some, for example, delete the reference to abortion.   Implicit in his statement is an important point, though.  Physicians have their own code of ethics, and most would -- narcissistically or otherwise -- place their own ethical principles above any legislation.  It sounds as though Kriston has this expectation. 

Henry Lewis at Just Left of Center adds the following:

In Michigan, it will soon be okay to refuse health care and coverage to gays, if you don’t like them.  Well, at least it’s still illegal to drag us out of our houses and shoot us. For now.

Lisa at Fuzzy Puppy snarls at the Michigan Congress thus:


As Atrios notes, it is indeed the Taliban in America. Of course, I've been saying that for years. There is no real difference between the god-fearing Christians here and the Islamic fundamentalists Over There. Not really. They should all get together over a nice hot book-burning fire sometime. 

Lachlan (who has what she calls a wee bio) posts on her site, my so-called bloga wee objection to the Legislation:

I cannot imagine, for the life of me, why this bill was sponsored. Marriage rights being denied- ok, that’s not going to kill anyone. But denying medical care to a segment of the population??

This comment, towards the bottom, ticks me off especially:

Paul A. Long, vice president for public policy for the Michigan Catholic Conference, said the bills promote the constitutional right to religious freedom.

“Individual and institutional health care providers can and should maintain their mission and their services without compromising faith-based teaching,” he said in a written statement.

So, placing one’s faith above another’s life is acceptable.

When are religious people of all stripes going to realize that beneath economics, faith, politics, sexuality, and gender we are all HUMAN? That that shared humanity links us, inextricably, and should not be dismissed in favor of societal trappings?

Those trappings, while part of our identities, should not be the basis for denying medical care. Each person is loved by someone, has feelings and dignity.

Unless, of course, you’re a gay MI resident and this law passes.

On Alex: tipping the balance, Alex weighs in:

Ostensibly, this legislation was written to provide an out for medical care professionals who are morally offended by treating gay patients (and probably abortion procedures as well). But let’s think about the statement, “This bill allows health care workers to refuse service to anyone on moral, ethical or religious grounds.” What could be any less ethical than for a medical professional to deny health care to any patient for any reason?

If medical professionals are going to start this kind of crap, then they do not belong in the medical field. I would suggest that this brings the word sanctimony to a stunning new level.

There are other comments by other bloggers, but I think the ones cited here cover most of the points raised in the Blogosphere.  Of note, I included all of the comments I found that were favorable to the Legislation, and that is a small number.  The overwhelming majority of those who wrote posts, and whose posts could be found using Waypath and Bloglines, are negative.  Many are strongly negative.  

There is one point that I did not see in any of the entries I surveyed.  From the Legislation:

A health care provider shall not make an objection known to or in the presence of a patient who is or may be the subject of the health care service to which the health care provider is objecting.                                  

This is bizarre, truly.  Especially when you consider that violations of the Legislation can be costly:

A person who violates this act is responsible for a state civil infraction and may be ordered to pay a fine of not more than $1,000.00 for each day the violation continues or a fine of not more than $1,000.00 for each occurrence.

I am not an attorney, but this would appear to mean that if a health care provider refuses to perform a service, and tells you to your face that he or she is refusing as a conscientious objection, then that provider could be fined $1000.  So, not only can the provider refuse to do something on moral grounds, the provider is not allowed to tell you why.  The Senate bill was passed by a vote of 69 to 35.  So 104 of our State's most distinguished citizens sat around and passed legislation making it illegal to tell someone why you are being obstinate.  I can understand why the 35 voted against it, I guess; but frankly, it is hard to image that anyone would even take this seriously, much less vote for it.