Meanwhile, in Michigan…

by Adrianna McIntyre

UPDATE 3/21/2013: The bill (or one like it) appears to be resurrected. Argh!
UPDATE 12/14/2012: The House did not vote on this bill during their final session, meaning it won’t be considered for passage at this time.
We now interrupt my regularly scheduled exam neuroses to bring you this blog post. 

458799534_392413b4eeObscured by hubbub over controversial right-to-work legislation, the Michigan Senate passed health care legislation last Thursday that should be raising dubious brows. The Religious Liberty and Conscience Protection Act allows practitioners (and payers) to refuse to provide services that don’t square with their personal beliefs—at least, that’s what more superficial media coverage would have you believe. A closer reading of the bill itself suggests that this is a barely-veiled attack on the federal contraceptive mandate—but one written in an alarmingly broad way that could cause immense (and unrelated) problems. The bill isn’t law yet, but a governor’s signature could change that.

It’s important to note that we already have a conscience clause for health care providers who don’t want to perform abortions. Considering that current law allows medical students to opt out of learning to perform abortions, I’m actually pretty on board; I think I’d rather have an physician refuse to perform that particular procedure than attempt it untrained.  So what does that leave open to objection? Well, everything else. My guess is that this bill is intended to target contraception prescription and coverage—and the ACA’s contraceptive mandate—but it’s written in a broad way that opens the door to alarming possibilities. Think vaccines. Think already vulnerable populations.

In my mind—and the mind of at least one Republican who voted against the bill—there remains a question of whether a provider can refuse to provide care for a patient whose lifestyle choices they disagree with: a member of the LGBT community, someone who contracted a disease behaviorally (through drugs or sex), a substance abuser. “I don’t know how this doesn’t violate the oath I took when I promised to resuscitate someone with TB or treat someone with AIDS,” said Roger Kahn, a cardiologist and state senator. An obstetrician from Holland, MI, called this allegation “outrageous.” The text of the legislation does specify that the moral protections don’t apply to providers/payers where “the objection is based on a patient’s or group of patients’ status” or ability to pay (additionally, it does not apply in life-threatening situations), but I remain dubious.

“I don’t know how this doesn’t violate the oath I took when I promised to resuscitate someone with TB or treat someone with AIDS.” —Dr. Roger Kahn (R), Michigan Senator

While the bill defines provider, payer, and health care service in painstaking detail, there is zero information regarding which characteristics are encompassed by “status.” If I’m ignorant of some common statutory definition, I welcome your enlightenment; my Googling was to no avail. Without a outlining patient status, my interpretation of this bill is that a provider can effectively refuse any service to any person, so long as the situation isn’t  life-threatening and it can be labeled a matter of moral conviction or ethical principle—nebulous at best.

I don’t think that the legislative intention was so nefarious as to codify patient marginalization; I think that was an accidental byproduct of how the bill was crafted. It’s my (admittedly, subjective) opinion that the Senate was trying to masquerade contraceptive insurance reform as a bill that protects doctors’ rights. When you get to page six of the bill, you get to the part that seems to (in my wonky eyes, at least) smack of spiting the ACA’s contraception provision:

Sec. 7. (1) A health care payer may decline to offer a  contract, policy, or product that pays for, arranges payment for, or facilitates the payment of a health care service that violates the conscience of the payer.  (2) A health care purchaser may decline to purchase or financially contribute toward the purchase of a contract, policy,  or product that includes coverage for a health care service that violates the conscience of the payer.

That verbiage refers to both insurance companies and businesses purchasing insurance for employees—this can apply to secular organizations whose owners’ religious beliefs serve as a proxy for the company as a whole. This controversial interpretation (to which I personally take massive exception) is the premise for a handful of lawsuits against the contraceptive mandate. One of these plaintiffs, Weingartz Supply Co.,  is from the town where I attended high school.

Here’s what my exam-addled brain isn’t comprehending: why bother passing contraception legislation that runs counter to federal law after that federal law has taken effect? Is the state Senate just pitching a partisan fit over the election results? Are they trying to better position the state for a lawsuit against HHS in the future? To my knowledge, this state law won’t supersede requirements of the Affordable Care Act, so it seems to be an act of futility.

If this is empty conservative posturing over contraceptives, writing a blank check excusing payers and practitioners from providing health care services based on moral conviction is a mighty perilous way to go about it.

photo credit

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Adrianna works in clinical research and is a graduate student in public policy & public health at the University of Michigan. Follow her on Twitter @onceuponA.

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