Smoke and Mirrors and Women, Oh My

[Guest post by Katherine L. Record, JD, MPH, MA]

Last week the Supreme Court attracted lots of attention when it heard arguments about whether a corporation can exclude mandatory preventive benefits from its employee health plan, based on a religious objection to certain types of healthcare.  This is a tale as old as time; religion has long been the basis for opposition to reproductive (i.e., women’s) health – including the preventive healthcare now in question, contraception.

Yet this argument has nothing to do with government infringement on the practice of religion.

In fact, the corporation, Hobby Lobby, covered two of the four contraceptive devices in dispute until its lawyers were actually arguing the issue in court, apparently to little detriment to the company’s faith in God.  What’s more, Hobby Lobby’s 401(k) includes more than $73 million invested in the companies that produce these objectionable contraceptives (e.g., intrauterine devices, emergency contraception).

This has not stopped Hobby Lobby from arguing that the Affordable Care Act (ACA) is threatening its freedom, as a corporation, to practice religion.

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Who’s the Boss? Why are our employers making our health insurance choices in the first place?

This guest cross-post first appeared on Slate.com.

Margaux J. Hall is the Center for Reproductive Rights Fellow at Columbia Law School. All views expressed are the author’s own.

This week, the Supreme Court hears oral argument in two cases asking whether for-profit business corporations have religious liberty rights. Hobby Lobby, a group of craft stores with 13,000 employees, and Conestoga Wood, a small Mennonite furniture maker, want to be free of the Obamacare requirement that employer-provided health insurance plans need to provide certain forms of birth control. They argue that their religious convictions prohibit them from covering such items. Religious institutions, reproductive-rights advocates, and others have sparred over the conflicting rights claims, but one important part of the conversation has been missing almost completely: Why are American employers deciding the contents of our personal health insurance plans?

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Advance Directives, Rights, and Brain Death Pregnancies

Dr. Jeffrey Ecker, a noted fetal medicine specialist, has an excellent piece on the Munoz case in Texas in a recent NEJM article (“Death in Pregnancy—An American Tragedy”).[1]   He shares the widespread view that brain dead pregnant women should not be maintained over the father or family’s objections.  He does, however, suggest that maintenance may occur with family consent to enable the fetus be born with the best chance of survival.

The burden of his comment is on legal issues and rights.  Because Texas recognizes brain death as legal death, the hospital had acted inappropriately when it relied on the Texas advance directive statute, which limits advance directives when a woman is pregnant, to maintain her over her husband’s wishes. The court ruled that since Ms Munoz was brain dead, the advance directive limitation which applies only to patients who are still alive, did not apply to a pregnant patient who was dead under cardiopulmonary or brain death criteria for death.  His comment deserves laurels for its clear presentation of the statutory conflict and its resolution.

Dr. Ecker, however, like many other commentators, runs into trouble when he says that the hospital’s actions in the Munoz case, even if supported by statute  are “a wrongful usurpation of the rights of individuals,  in this case  … women.”[2]  The problem is his the assumption that there is or should be a constitutional or legal right at Time 1 when competent to issue a legally binding directive at Time 2 when the maker is incompetent and indeed may have a different set of interests or none at all.

But there is no constitutional right to make a directive at Time 1 that binds at Time 2.  Justice Sandra O’Connor concurring in the outcome in Cruzan mentioned a possible 14th Amendment right to appoint a health care proxy to make a decision at Time 2, but no other justice joined her.[3]  Indeed, a constitutional right to make future directives that bind oneself directly or through an agent has no constitutional precedent and poses many problems.

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TOMORROW: Second Annual Health Law Year in P/Review

Please join us for our second annual Health Law Year in P/Review event, co-sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the New England Journal of Medicine. The conference will be held in Wasserstein Hall, Milstein East C at Harvard Law School on Friday, January 31, 2014, from 8:30am to 5:00pm.

This year we will welcome experts discussing major developments over the past year and what to watch out for in areas including the Affordable Care Act, medical malpractice, FDA regulatory policy, abortion, contraception, intellectual property in the life sciences industry, public health policy, and human subjects research.

The full agenda is available on our website. Speakers are:  Continue reading

1/31: Second Annual Health Law Year in P/Review

Please join us for our second annual Health Law Year in P/Review event, co-sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the New England Journal of Medicine. The conference will be held in Wasserstein Hall, Milstein East C at Harvard Law School on Friday, January 31, 2014, from 8:30am to 5:00pm.

This year we will welcome experts discussing major developments over the past year and what to watch out for in areas including the Affordable Care Act, medical malpractice, FDA regulatory policy, abortion, contraception, intellectual property in the life sciences industry, public health policy, and human subjects research.

The full agenda is available on our website. Speakers are:  Continue reading

1/31: Second Annual Health Law Year in P/Review conference

Please join us for our second annual Health Law Year in P/Review event, co-sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the New England Journal of Medicine. The conference will be held in Wasserstein Hall, Milstein East C at Harvard Law School on Friday, January 31, 2014, from 8:30am to 5:00pm.

This year we will welcome experts discussing major developments over the past year and what to watch out for in areas including the Affordable Care Act, medical malpractice, FDA regulatory policy, abortion, contraception, intellectual property in the life sciences industry, public health policy, and human subjects research.

The full agenda is available on our website. Speakers are:  Continue reading

Art Caplan: When Religion Trumps Medicine

Cross-post from bioethics.net

Imagine that you were in a terrible car accident and suffered a huge loss of blood. An ambulance comes and takes you, dazed and in pain, to the only hospital within a hundred mile area of the accident. That hospital happens to be affiliated with the Jehovah’s Witnesses. Everything at the hospital is state of the art. The doctors and nurses are all well trained. There is only one hitch in terms of your medical care. You need blood transfusions or you are going to die. The hospital does not have a blood bank. Nor does it offer transfusions. They believe blood transfusion violates their faith. The doctor suggests you be given a lot of fluids to maintain your ‘volume’ and that you hope for the best. Wouldn’t you demand that the Witness affiliated hospital put aside their faith-based beliefs and do what is medically indicated and either provide a transfusion or try to arrange one? If you did not recover would you expect your family to accept the fact that your death could easily have been prevented but for the hospital’s decision to put theology over medicine?

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Standards of Care and Patient Advocacy in Religiously Affiliated Hospitals

By Nadia N. Sawicki

The New York Times reported today that the ACLU has filed a lawsuit against the United States Conference of Catholic Bishops on behalf of Tamesha Means, a patient at Mercy Health Partners in Michigan.  The suit alleges that Means suffered physical and emotional harm as a result of the Conference of Bishops’ ethical directives relating to pregnancy termination, which Mercy, as a Catholic health institution, is required to follow.

According to the ACLU press release and the Times article, when Means’ water broke 18 weeks into her pregnancy, she rushed to Mercy Health, the only hospital in her county.  According to medical experts, the fetus had “virtually no chance of surviving” and posed a significant risk to Means’ health.  Mercy physicians did not share this information with Means, and discharged her without informing her that terminating the pregnancy and extracting the fetus was the safest course of action from a medical perspective. Means returned to the hospital twice in the next two days, suffering from infection and extreme pain, but it wasn’t until she miscarried that the staff at Mercy attended to her medical needs.   An obstetrician at the University of Wisconsin Medical School quoted in the Times described Mercy’s treatment of Means’ condition as “basic neglect.”

Rather than suing Mercy Health Partners, Means and the ACLU are suing the Conference of Bishops.  They argue that by directing Catholic hospitals to avoid terminating pregnancies or providing referrals (even when a woman’s health is at risk), the Conference of Bishops is ultimately responsible for the harms suffered by Means and other women in her position.  According to Louise Melling, deputy director of the ACLU, “This isn’t about religious freedom, it’s about medical care.”

There are a host of legal, ethical, and religious issues associated with the Tamesha Means case.  But in this post, I’d like to focus on only one - the division of legal responsibility between health care providers and third parties when it comes to patient advocacy and quality of care. Continue reading

SCOTUS and the Contraceptives Coverage Mandate

As everyone and their brother expected, SCOTUS has just decided to take up two cases challenging the contraceptives coverage mandate: Hobby Lobby, in which the 10th Circuit ruled in favor of the religiously-objecting (but secular, for-profit) employer, and Conestoga, in which the 3rd Circuit went the other direction, maintaining that “for-profit, secular corporations cannot engage in religious exercise.”

I think the First Amendment piece of this is pretty much open-and-shut: the requirement that employers offer health plans that provide contraceptives coverage free of charge is pretty clearly neutral and generally applicable.  Arguments around the Religious Freedom Restoration Act are much more interesting.  For our non-lawyer readers, the basic idea behind RFRA is that the federal government may not (1) substantially burden the right to free exercise of religion, unless it does so (a) in furtherance of a compelling interest, and (2) using the least restrictive means.  This is a high hurdle, otherwise known as strict scrutiny.

You can see several clear decision points under the RFRA analysis, and pretty much any one of them could go either way:

Do for-profit corporations have a right to free exercise?

As a threshold matter, RFRA offers protection only to those entities with free exercise rights.  Citizens United tells us that “corporations are people, my friend.”  So if that analysis applies to both the First Amendment’s free speech rights and free exercise rights, then corporations can at least pass go.  On the other hand, some courts have maintained that religion can only be exercised by individuals or religious organizations, such that RFRA would not apply to secular, for-profit corporations.

Does the contraceptives mandate impose a substantial burden? 

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Caplan on Organs and Inmates

By Art Caplan

Are we ever capable of laying a stupid idea to rest in America?  Apparently not.  The latest tempest in the ever-resurrecting world of solutions to the shortage of organs is donation by executed prisoners.  The Governor of Ohio held up a plan to execute a man on death row when he requested that his organs be donated to his mother and sister each of whom have serious health problems.

According to the AP,

“Ohio Governor John Kasich on Wednesday stayed the execution of convicted killer Ronald Phillips to assess whether Phillips’s non-vital organs or tissues can be donated to his mother or possibly others. Phillips, 40, was scheduled to be executed Thursday for the 1993 murder of 3-year-old Sheila Marie Evans.

“I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues, then we should allow for that to happen,” Kasich said in a statement.”

The Governor need not have bothered.  What child rapist and murderer Ron Phillips had in mind was donating his heart and kidneys to his family.  He has shown no interest in helping anyone else nor did he ever mention tissue donation.

Moreover, getting organs from an executed prisoner is both impractical and immoral.

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The contraception mandate decision

From my post at The Incidental Economist:

The Gilardi v. HHS decision is out today (on scribd), blocking the PPACA contraception mandate for the plaintiffs. Two brothers own Freshway Foods and a related company that offer a self-insured health plan to their 400 employees. For non-grandfathered plans with an annual enrollment period starting on or after September 23, 2010, PPACA required zero deductibles and cost sharing for a package of preventative services. One component of that package includes FDA-approved contraception. The Gilardi brothers claimed this requirement violates the Religious Freedom Restoration Act (RFFA). A majority of the Court agreed, sending the case back to the District Court for a reconsideration of the injunction.

This case raises an interesting point about pluralism in our society. When do we get to abstain from generally-applicable laws that violate our moral beliefs? Even more attenuated, when do we get to opt out because other people’s actions violate our beliefs? Can the Freshway companies decide to drop hospice care for their employees as violating their Catholic beliefs? Could a Muslim employer prevent employees from bringing home the bacon with their paychecks? Could a Baptist employer fire employees for watching porn at home on HBO?

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Art Caplan: Prayer no substitute for vaccination

Art Caplan has a new opinion piece up at nbcnews.com on a recent outbreak of measles centered around a church in Newark, Texas. From the piece:

The congregation of Eagle Mountain International Church in Newark, Texas, recently discovered that prayer is no substitute for vaccination.

After visiting Indonesia, an unidentified visitor to the megachurch 50 miles outside Dallas — where ministers have long favored faith-healing over vaccinations — infected at least 21 people in the church and neighboring towns with measles. One victim was a 4-month old baby too young to receive a vaccination and thus totally dependent on others to do so.

Confronted with the measles outbreak, church leaders changed their tune, launched a vaccination drive, hosted vaccination clinics and encouraged the entire congregation to get immunized. The Old Testament is “full of precautionary measures,” senior pastor Terri Pearsons said after the mini-epidemic.

Theological revelation aside, Pearsons and other church leaders should have thought about this sooner. They and other vaccine resisters — from wealthy suburbanites who worry about the dangers they’ve heard from celebrities to conspiracy theorists who see only corporate profits driving a push to cover-up risks — are directly to blame for spreading unwarranted fear of vaccines.

Read the full article here.

Anthony Weiner, Sexting, Medicalization, and Legal Moralism, Or (To Be Provocative) “What’s So Wrong About Sexting?”

Like most people, I am both amused and shocked by the latest Anthony Weiner sexting revelations and scandal. It is like a car crash where it is hard to look away even though you know you should.

Most germane to Bill of Health’s readership, I am fascinated by the “medicalization” of Weiner’s behavior by some sectors, this CNN clip with therapists is to me a good example. The words “sexual addiction,” “exhibitionism,” comparisons to alcoholism, “not in control of his actions” are bandied about. This to me has fascinating echoes of the medicalization of homosexuality in the 70s and also the medicalization of the choices made by the transgendered. There like here the strategy is fraught. The patient has to perform the “sick role” as a way of excusing himself from responsibility and/or earn governmental support.

The comparison, though, prompts the following question (and yes I am purposefully trying to be provocative so take it with the appropriate grain of salt): As with homosexuality, what is the underlying problem here that calls out for condemnation? Is this merely legal moralism rearing its head again? What’s so Wrong About Sexting?

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Guest Post: Crack Down on Those Who Don’t Vaccinate?: A Response to Art Caplan

As of Friday, June 28, this post is closed to further comments. We want to thank the many readers who have engaged in a vigorous and civil discussion on the recent posts to the Bill of Health that engage questions related to the debate over vaccines. In general, we do not moderate discussions on the site. However, due to an increasing number of comments that violate our policies regarding abusive and defamatory language and the sharing of personal information, we are closing these posts to comment.

By Mary Holland, J.D.

Mary Holland is Research Scholar and Director of the Graduate Legal Skills Program at NYU Law School. She has published articles on vaccine law and policy, and is the co-editor of Vaccine Epidemic: How Corporate Greed, Biased Science and Coercive Government Threaten Our Human Rights, Our Health and Our Children (Skyhorse Publishing, 2012). 

Dr. Art Caplan recently posted an editorial, “Liability for Failure to Vaccinate,” on this blog. He argues that those who contract infectious disease should be able to recover damages from unvaccinated people who spread it. If you miss work, or your baby has to go to the hospital because of infectious disease, the unvaccinated person who allegedly caused the harm should pay. Dr. Caplan suggests that such liability is apt because vaccines are safe and effective. He sees no difference between this situation and slip-and-fall or car accidents due to negligence. Arguing that “a tiny minority continue to put the rest of us at risk,” he suggests that public health officials can catch the perpetrators and hold them to account through precise disease tracing.

Dr. Caplan’s assertions to the contrary, vaccines are neither completely safe nor completely effective. In fact, from a legal standpoint, vaccines, like all prescription drugs, are “unavoidably unsafe.”  [See, e.g., Bruesewitz v. Wyeth, 562 U.S. __ (2011).‎] Industry considered its liability for vaccine injury so significant that it lobbied Congress for the 1986 National Childhood Vaccine Injury Act, providing doctors and vaccine manufacturers almost blanket liability protection for injuries caused by federally recommended vaccines. [See Authorizing Legislation.] The liability risk was so serious that the federal government created a special tribunal under the 1986 Act, the Vaccine Injury Compensation Program, to pay the injured. Moreover, the Supreme Court in 2011 decided Bruesewitz v. Wyeth, prohibiting any individual from filing a civil suit for a defectively designed vaccine in any court in the country. Industry’s extraordinary protection against liability for vaccine injury does not correspond with glib statements, like those of Dr. Caplan, that vaccines are safe and effective. On the contrary, the law acknowledges that vaccines cause injury and death to some, with no screening in place to mitigate harm.  Continue reading

Pharmacist Conscience Clauses

By Joanna Sax

Multiple states have statutes that protect a pharmacist from liability for refusing to fill a prescription for an FDA approved medication.  Other states have laws that require pharmacists to fill prescriptions regardless of their personal beliefs.  The debate surrounding conscience clause legislation falls at two opposing spectrums.  Opponents to conscience clauses argue that refusal to fulfill a prescription for a non-medical reason interferes with the doctor-patient relationship and disproportionately effects women because it is often employed with prescriptions for birth control.  Supporters of conscience clause legislation argue that pharmacists have a constitutional right and that their personal beliefs should be respected.

These two sides will never meet.  They will continue to argue notions of fairness and each side will dig-in their heels.

I’ve proposed a different approach to analyze whether pharmacist conscience clauses are beneficial to society using welfare economics.  In short, the pharmacist conscience clauses serve as an affirmative defense in an action for professional negligence.  Pharmacist conscience clauses can be analogized to a no-care regime and arguably not maximize the well-being of individuals.  To see more of my argument of analyzing conscience clauses using an economic approach, you can check out my article here.

New Paper on Conscience and the ACA

Piggy-backing on Glenn’s post below, I just wanted to point you to my contribution to the same symposium issue of Ethical Perspectives.  The paper, “Religious Liberty, Conscience, and the Affordable Care Act,” can be downloaded here, and copied below is the abstract:

Broadly applicable legal requirements often come into conflict with moral or religious standards that individuals and organizations feel more strongly compelled to obey. Making room for such moral and religious standards in secular society is important, but can be difficult, since any exemptions or accommodations cannot be allowed frustrate the purpose of the general law, and must also be fair to those who remain subject to it without any special arrangements.

This essay briefly surveys the ways in which the Affordable Care Act might come into conflict with moral and religious beliefs held by both individuals and institutions, and describes the government accommodations that have been offered or considered to date. In particular, it focuses on the requirement that employers offer insurance coverage for free contraceptives and the requirement that individuals purchase insurance coverage that may include services they find objectionable. In both cases, I conclude that the proffered accommodations should be altered to enhance fairness as between objectors and non-objectors.

New Paper on Coercion and the Constitutionality of the Affordable Care Act

I have a new paper on the Supreme Court’s decision on the Affordable Care Act, just published in the European peer-reviewed philosophy journal Ethical Perspectives. It is available for free download here.  Here is the abstract:

While NFIB v. Sebelius largely upheld the Affordable Care Act (ACA), it did not do so as as to the proposed expansion of Medicaid. Seven of the nine U,S, Supreme Court Justices (all except Justices Ginsburg and Sotomayor) endorsed a ‘coercion’ argument that gave individual States a right of objection grounded in the Constitution’s Spending Clause, wherein individual states could refuse to expand Medicaid as demanded by the federal government without being directly penalized by a denial of federal funding. Two Justices in dissent focused on the lack of judicial administrability of such a standard, and suggested it would open up a Pandora’s box of future constitutional challenges without any clear rules.

In this article, part of a symposium on philosophical analysis of the Court’s decision published in the peer-reviewed journal Ethical Perspectives, I discuss what I see as a more fundamental question: by what theory is the Medicaid expansion coercive, and even if coercive, by what theory is it coercive in a problematic way that justifies constitutional redress?

The Court’s failure to address this issue stems, in part, from confusion over what it means for an offer to be coercive. In some sense, Justice Kagan seemed to recognize this issue in a question to Paul Clement, the lawyer for the challengers to the ACA, at oral argument: “Why is a big gift from the federal government a matter of coercion?” Kagan asked. “It’s just a boatload of federal money for you to take and spend on poor people’s health care,” Kagan added. “It doesn’t sound coercive to me, I have to tell you.” The exchange is all the more curious because, despite her scepticism, Kagan signed on to the Court’s holding that the Medicaid expansion was coercive.

I will examine this issue by first discussing whether Medicaid itself and the ACA’s expansion are coercive (as stand-alone offers). I will then examine whether the offer to change from the existing Medicaid program to the ACA’s Medicaid expansion was problematic. I will analyze these questions under the assumption that the Court is not committing a category error by treating States as the kinds of entities subject to this kind of coercion inquiry. In my conclusion, however, I briefly consider whether that assumption is warranted.