Thursday, July 19, 2012

Facts, Fears & Protections of Conscience

A friend  excitedly calls to say that not only does the Affordable Care Act have a section related to physician involvement in, as my friend put it, "death facilitating," but it supports euthanasia and mercy killing.

It's the slippery slope, my friend seems to be saying, written into law.

A few minutes later he calls back, sheepish, and like a latter day Emily Litella, says, "Never mind." He'd reread ACA's Section 1553, and it doesn't say what he thought it said.

The ACA does include policy regarding the practice alternately known as Death With Dignity or Physician-Assisted Suicide. Section 1553 even goes a step further, to include euthanasia and mercy killing.

But the law hardly promotes the practice, and in fact is written as protection against discrimination for physicians who refuse to assist a patient in this way. The ACA gives physicians in Oregon, Washington, Montana and, perhaps next, in Massachusetts, federal backing for having nothing to do with a practice the Community Ethics Committee calls Choosing Medically Induced Death.

The good news for my friend and I is, we caught the mistake and both came away better understanding what the law actually says. Given the nature of the political dialogue regarding ACA, aka "Obamacare," clarity isn't always easy to come by.

The truth of Section 1553 is just as interesting to me: that protection from an assisted suicide law was seen as necessary -- that doctors, nurses and hospitals might need cover, under the Death With Dignity Initiative, when they say no for moral, ethical or other reasons.

Under Subtitle G/Miscellaneous Provisions, ACA's Section 1553 protects physicians, health care professionals and hospitals, et al., from discrimination for refusing to participate in "assisted suicide, euthanasia, or mercy killing." Complaints of discrimination are handled by the Office for Civil Rights in the Department of Health and Human Services.

This type of clause has a name: provider refusal clause, or conscience clause. It also has a history, which I learned about in a blog post by Ann Neumann, a writer (www.otherspoon.blogspot.com), hospice volunteer and editor of TheRevealer.org, a publication of the Center for Religion and Media at New York University.

Such clauses began in 1973, according to Neumann --  in response to the legalization of abortion. "What were once 'protection' of doctors from performing medical services they morally or religiously objected to morphed into 'protection' of entire institutions, like the Catholic church, which is the second largest provider of health care in the U.S.," Neumann wrote.

I hadn't read Neumann's blog in a while, and am glad to rediscover it. She's a wonderful writer, and an astute observer of the volatile intersection of religion and medicine.

Of the conscience clause and its expanding implications for a religion's influence on medical practice, especially for marginalized individuals, Neumann wrote: "Backlash to Roe v. Wade has expanded these federal laws ... to include increased rights of doctors at the detriment of rights for patients. Some do not require referrals — a doctor is not required to give a woman, gay or elder patient a meaningful referral for services — or informed consent — a doctor is not required to tell a woman, gay, or elder patient all of their medical options."

It is interesting that ACA anticipated states going beyond permitting physicians to write lethal prescriptions by including specific language about euthanasia and mercy killing -- as recently occurred via judicial ruling in British Columbia. 

It is also interesting, and maybe ironic, that while the Death With Dignity Initiative in Massachusetts is written to shield physicians from legal repercussions -- going so far as to state that the official cause of death would be attributed to the underlying terminal disease, and not to the lethal dose -- refusing to participate requires a legal protection all its own.

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