What Were They Thinking?

Barbara Coombs Lee

The new HHS "conscience" rule is a prescription for health care chaos.

As part of its far-reaching social agenda, the Bush Administration
instituted a health care regulation so sweeping and vast, its potential to
wreak havoc seems, to me, unlimited. Popular press tells this story as one
about abortion, but that’s just where the tale begins.

Clever anti-choice operatives dressed up a malicious rule as an
"anti-discrimination," measure. In actuality it promotes
discrimination against those in need of care. It enables the self-righteous to
hold patients and whole health care systems hostage to their personal,
idiosyncratic beliefs. The "conscience" rule, went into effect January
19th, 2009, and as such is not subject to the Obama Administration’s suspension
of pending rules.

The most dangerous section, 88.4 d 2, bars
health care institutions and employers from requiring "…any individual
to perform or assist in the performance of any part of a health service
program…" if it would offend his/her religious beliefs or moral
convictions. The next line stops employers from taking a person’s refusal to "perform
or assist" into account in decisions about employment, promotion,
termination, or the extension of staff privileges. The rule covers anyone
refusing to do their job for reasons of religious belief or moral conviction
— physicians, nurses, pharmacists, technicians — apparently even cleaning
and maintenance staff.

The rule makes no exception for refusals that endanger the patient, and
imposes no duty to give the employer or patient ample notice of a pending
refusal. The refusers are not even required to make sure
"non-refusing" staff are ready to cover for them during a crucial
treatment or procedure. Apparently that’s someone else’s job.

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So let’s get this straight. Anyone, anywhere, anytime, can claim an
authentic, deeply held moral objection to any health care treatment, procedure
or prescription and opt out, on the spot, leaving a patient high and dry. And
there’s not a thing the employer can do about it, because the Feds say so.

How is this not a prescription for chaos?

The righteous people at the Bush HHS spotlighted abortion, sterilization and
contraception in this rule. But their rule certainly doesn’t stop there. We
have already written about the disastrous impact this rule is likely to have on
end-of-life pain care
, and especially the urgent intervention against
suffering called terminal sedation. The rule exaggerates an already significant
problem of under-treated pain by empowering health care personnel, including
those at the bedside, who have personal moral or religious beliefs opposing
aggressive pain care, regardless of the patient’s agony.

This rule could have a dramatic effect on all patients. How far could this
go?

Jehovah’s Witnesses, one group with deeply held religious convictions,
believe the transfer of blood and blood products is sinful. I don’t think these
good people have ever sought to impose their beliefs on others, or grind health
care to a halt to accommodate their beliefs. But this rule certainly gives them
license to do that if they wish. "Sorry," the Jehovah’s Witness
nurse, technician or aide could say to a trauma patient bleeding to death in
the emergency room. "I can’t help, even to carry the blood to the bedside.
Find somebody else to go get it, or set up the IV to deliver it, or confirm
it’s the correct blood type." This sweeping rule even prohibits a
blood bank from declining to hire a Jehovah’s Witness in the first place, even
if their convictions would bar them from performing any actual work at the
blood bank.

Another religious denomination with strong health care convictions are
Christian Scientists, who adhere to Mary Baker Eddy’s science of Christian
healing and reject techniques of medical care. A Christian Science nurse,
technician or other hospital worker could refuse to participate in any aspect
of their job description, with full protection from the federal government.

This is just the beginning — just a few moral convictions enshrined in
established religious denominations. What about the myriad of personal,
idiosyncratic beliefs and convictions people usually keep to themselves? This
federal rule might coax these private convictions into overt demonstration,
given that we can’t discriminate against the person who refuses to do their job
because of them.

Think of people declining to participate in any procedure or treatment that
was tested on animals. Think of people who object, accurately or not, that a
treatment arose from stem cell research. Think of anything a person could
object to, then think how the objecting person could sabotage health care, put
patients at risk and leave personnel policies in taters by exercising their new
found "anti-discrimination" right.

Finally, there’s administration’s absurd estimate of the cost of its rule on
our already strained system. The estimate includes one person’s time (they
think 30 minutes will be plenty) to read the paperwork and certify that the
institution complies. Nothing more. They conclude that this modest cost will be
MORE than made up by the fantastic opportunities in health care for all the
people who might have previously thought health care was not the career for
them, because their deeply held convictions would bar them from actually
delivering services. They were so wrong! According to this crazed policy, they
should all apply for employment at their local health care institution, and
finally get the world to conform to their convictions! At last they will really
matter!

Unfortunately, patients are the unwitting victims in the service of
sanctimony.

News Law and Policy

No Need to Block Bathroom Access for Transgender Student, Attorneys Tell Supreme Court

Jessica Mason Pieklo

A transgender student in Virginia sued the local school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity was unconstitutional.

Attorneys representing transgender student Gavin Grimm told the U.S. Supreme Court this week that there was no reason to block a lower court order guaranteeing Grimm access to school restrooms that align with his gender identity while Grimm’s lawsuit against the Gloucester County School Board proceeds.

Grimm in 2015 sued the school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity—thus separating transgender students from their peers—was unconstitutional. Attorneys representing Grimm argued that the policy violates the 14th Amendment and Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

A lower district court ruled the school board’s policy did not violate Grimm’s rights. But the Fourth Circuit Court of Appeals disagreed, reversing that decision and sending the case back to the lower court, which then blocked the school district from enforcing its policy while Grimm’s case proceeds.

In response, the school board notified the Fourth Circuit of its intent to appeal that decision to the Supreme Court and requested the appellate court stay its order granting Grimm access to bathrooms aligned with his gender identity—a decision the Fourth Circuit granted in June.

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The school board then asked the Roberts Court to issue an emergency stay of the lower court decision blocking its bathroom policy while the Court considers taking Grimm’s case.

Grimm’s attorneys argue there is no basis for the Roberts Court to grant the emergency stay requested by the school board. The board has “utterly failed to demonstrate that it will suffer irreparable harm” if Grimm is allowed to use the boys’ restroom at Gloucester High School while the Roberts Court considers stepping into the case at all, according to Grimm’s attorneys.

Attorneys for the school board filed their request with Chief Justice John Roberts, who handles petitions from the Fourth Circuit. Roberts can rule on the school board’s request to block the lower court decision, or he can refer the request to the entire Court to consider.

It is not known when Roberts or the Court will make that choice.

The Gloucester County School Board has argued that the Obama administration overstepped its authority in protecting transgender student rights. Attorneys for the school board said that overreach began in 2012, when an administration agency issued an opinion that said refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

The administration expanded that opinion in October 2015 and filed a friend of the court brief on Grimm’s behalf with the Fourth Circuit, arguing it was the administration’s position that the school board’s policy violated federal law.

The administration again expanded that opinion in May this year into a directive stating that should publicly funded schools deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law, subject to lawsuits, and risking their federal funding.

The Fourth Circuit relied heavily on these actions in initially siding with Grimm earlier this year.

News Law and Policy

Three Crisis Pregnancy Centers Served for Breaking California Law

Nicole Knight Shine

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act.

The Los Angeles City Attorney is warning three area fake clinics, commonly known as crisis pregnancy centers (CPCs), that they’re breaking a new state reproductive disclosure law and could face fines of $500 if they don’t comply.

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, advocates and the state Attorney General’s office indicate.

The office of City Attorney Mike Feuer served the notices on July 15 and July 18 to two unlicensed and one licensed clinic, a representative from the office told Rewire. The Los Angeles area facilities are Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

The law requires the state’s licensed pregnancy-related centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care, and for unlicensed centers to disclose that they are not medical facilities.

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“Our investigation revealed,” one of the letters from the city attorney warns, “that your facility failed to post the required onsite notice anywhere at your facility and that your facility failed to distribute the required notice either through a printed document or digitally.”

The centers have 30 days from the date of the letter to comply or face a $500 fine for an initial offense and $1,000 for subsequent violations.

“I think this is the first instance of a city attorney or any other authority enforcing the FACT Act, and we really admire City Attorney Mike Feuer for taking the lead,” Amy Everitt, state director of NARAL Pro-Choice California, told Rewire on Wednesday.

Feuer in May unveiled a campaign to crack down on violators, announcing that his office was “not going to wait” amid reports that some jurisdictions had chosen not to enforce the law while five separate court challenges brought by multiple fake clinics are pending.

Federal and state courts have denied requests to temporarily block the law, although appeals are pending before U.S. Court of Appeals for the Ninth Circuit.

In April, Rebecca Plevin of the local NPR affiliate KPCC found that six of eight area fake clinics were defying the FACT Act.

Although firm numbers are hard to come by, around 25 fake clinics, or CPCs, operate in Los Angeles County, according to estimates from a representative of NARAL Pro-Choice California. There are upwards of 1,200 CPCs across the country, according to their own accounting.

Last week, Rewire paid visits to the three violators: Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

Christie Kwan, a nurse manager at Pregnancy Counseling Center, declined to discuss the clinic’s noncompliance, but described their opposition to the state law as a “First Amendment concern.”

All three centers referred questions to their legal counsel, Alliance Defending Freedom (ADF), an Arizona-based nonprofit and frequent defender of discriminatory “religious liberty” laws.

Matt Bowman, senior counsel with ADF, said in an email to Rewire that forcing faith-based clinics to “communicate messages or promote ideas they disagree with, especially on life-and-death issues like abortion,” violates their “core beliefs” and threatens their free speech rights.

“The First Amendment protects all Americans, including pro-life people, from being targeted by a government conspiring with pro-abortion activists,” Bowman said.

Rewire found that some clinics are following the law. Claris Health, which was contacted as part of Feuer’s enforcement campaign in May, includes the public notice with patient intake forms, where it’s translated into more than a dozen languages, CEO Talitha Phillips said in an email to Rewire.

Open Arms Pregnancy Center in the San Fernando Valley has posted the public notice in the waiting room.

“To us, it’s a non-issue,” Debi Harvey, the center’s executive director, told Rewire. “We don’t provide abortion, we’re an abortion-alternative organization, we’re very clear on that. But we educate on all options.”

Even so, reports of deceit by 91 percent of fake clinics surveyed by NARAL Pro-Choice California helped spur the passage of the FACT Act last October. Until recently, a person who Googled “abortion clinic” might be directed to a fake clinic, or CPC.

Oakland last week became the second U.S. city to ban false advertising by facilities that city leaders described as “fronts for anti-abortion activists.” San Francisco passed a similar ordinance in 2011.