Balancing States of “Conscience”

March 8, 2012

HealthcareThe Departments of Health and Human Services, Labor, and the Treasury recently released the final rule implementing the Affordable Care Act’s requirement that non-exempt group health plans and health insurance issuers cover preventative services for women, including all FDA “approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity.”

This coverage begins on August 1, 2012.

The rule caused considerable uproar among conservative groups and religious organizations that opposed having to pay for such services.

As a result, CMS released guidance that would allow a one-year “temporary enforcement safe harbor” to accommodate non-exempt group health plans that have not previously covered contraceptive services for religious reasons.

Not satisfied with the temporary safe harbor, Sen. Roy Blunt (R.-Mo.) attempted to add an amendment to a transportation appropriations bill to include his Respect for Rights of Conscience Act of 2011.

Under the so-called “Blunt Amendment,” corporations, insurance companies, and employers could have refused to cover any item or service inconsistent with their religious beliefs or moral convictions

Additionally, individual providers could have refused to provide, participate in, or refer for any item or service that was contrary to his or her religious beliefs or moral convictions.

There was little discussion of the preemptive impact in states that currently mandateinsurers provide coverage for contraception.

Although Sen. Blunt’s amendment received a lot of attention – more because of Mitt Romney’s varied responses than the content – the reality is that following the Supreme Court’s decision in Roe v. Wade most states adopted legislation allowing providers to refuse to provide services on religious or moral grounds.

However, state legislators are still acting to provide additional protections for providers who refuse to provide healthcare. For example:

  • Alabama House Bill 375 would give healthcare providers the right to refuse to perform or to participate in healthcare services that violate their conscience; immunity from civil, criminal, or administrative liability for refusing; and make it unlawful to discriminate against providers who refuse.
  • Missouri House Bill 1541 would provide that no medical professional could be required to participate in a medical service that violates his or her conscience; provide that no medical professional could be civilly, criminally, or administratively liable for doing so; and would prohibit discrimination against a medical professional who declines to participate in a medical service that violates his or her conscience.
  • Oklahoma House Bill 2460 would establish the Healthcare Freedom of Conscience Act to prohibit all forms of discrimination, disqualification, coercion, or liability upon healthcare providers, institutions, and payers that decline to perform any healthcare service that violates their consciences.

Because this is an election year, we can no doubt anticipate considerable state and federal action to address the rights of corporations, insurers, employers, and providers to refuse to pay for or provide contraceptives and abortion services to women.

However, along with the political rhetoric, some attention must be given to striking a balance between allowing the payers and providers to refuse services based on religious and moral beliefs and the right of women to access healthcare.