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Health care in the United States

overview of the health care system in the United States of America

Healthcare in the United States is subject to far higher levels of spending than any other nation, measured both in per capita spending and as a percentage of GDP. Despite this, the country has significantly worse healthcare outcomes when compared to peer nations. The U.S. is the only developed nation without a system of universal healthcare, with a significant proportion of its population not carrying health insurance.

Quotes

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Physicians’ and pharmacists’ first and foremost ethical obligation in situations of epidemic, disaster or terrorism is to provide urgent medical care and ensure availability and appropriate use of necessary medications. ~ American Medical Association
 
So to summarize the health-care crisis:
Our current system for providing medical care is insane.
But a majority of Americans understand that the federal government, if given the opportunity, would figure out a way to make it worse.
Therefore, the odds are that nothing will be done. ~ Dave Barry
 
Homer Simpson: America's health care system is second only to Japan … Canada, Sweden, Great Britain … well, all of Europe. ~ Gary Apple and Michael Carrington
 
Of all the forms of inequality, injustice in healthcare is the most shocking and inhumane. ~ Martin Luther King
 
The head of Indianapolis-based insurance company OneAmerica said the death rate is up a stunning 40% from pre-pandemic levels among working-age people. “We are seeing, right now, the highest death rates we have seen in the history of this business – not just at OneAmerica,” the company’s CEO Scott Davison said during an online news conference this week. “The data is consistent across every player in that business.” ~ Margaret Menge
 
The U.S.'s privatized for-profit health care system had long been an international scandal, with twice the per capita expenses of other developed societies and some of the worst outcomes. ~ Noam Chomsky
  • Now I know what you're saying. You're saying, "Dave, you have painted a distorted and inaccurate picture of the American health-care system. Not all patients wind up being as wretched as Mary! Many of them wind up being dead." True, but let's not get nitpicky. The point is, our health-care system is a terrible mess. It's expensive, wasteful, inefficient, unresponsive, and infested with lawyers. Which is why there has been a big push, in some quarters, to place it under the management of... The federal government. This is like saying if your local police department has a corruption problem, the solution is to turn law enforcement over to the Sopranos. Nevertheless, there are people- intelligent, educated, well-meaning people- who seriously believe that we should let Washington redesign our health-care system. It goes without saying that these people live and work in Washington; that's the only place where you're going to find intelligent, educated, well-meaning people who are that stupid.
    • Dave Barry, I'll Mature When I'm Dead (2010). New York, G.P. Putnam's Sons, p. 170-171
  • The rest of the country is not so thrilled about trusting their health care to the same government that produced, for example, the U.S. Tax Code. Most Americans outside of Washington don't really trust Washington to do anything except screw up. This is the fundamental reason we have a two-party system. We put the Republicans in office until they have totally screwed things up, then we vote them out and let the Democrats take their turn totally screwing everything up, then we switch back to the Republicans, and so on, back and forth. It's like a Ping-Pong game in which neither player ever actually makes contact with the ball.
    So to summarize the health-care crisis:
    Our current system for providing medical care is insane.
    But a majority of Americans understand that the federal government, if given the opportunity, would figure out a way to make it worse.
    Therefore, the odds are that nothing will be done.
    So your best bet, until further notice, is to do what 83 percent of all licensed American physicians do, according to a recent survey: Avoid medical care altogether. This means you need to stay healthy. Exercise regularly, get plenty of rest, avoid contact with humans, and never inhale or open your eyes in a public restroom. Above all, make sure you at a balanced diet. By which I mean: broccoli and alcohol.
    • Dave Barry, I'll Mature When I'm Dead (2010). New York, G.P. Putnam's Sons, p. 171-172
  • It has been a rotting corpse for decades, with heinous medical experiments carried out throughout our modern history. The administration of LSD to prepubescent children by the intelligence services in the 1950s; the widespread use of psychiatric drugs, lobotomies, electric shock, and involuntary commitments in the decades after; and the deliberate butchery of over 60 million infants in America since 1971. We are only now paying a bill that was racked up over several generations. We tolerated medical injustice because most of us did not know any better. More of us know more now, but the truth is withheld from the masses under the COVID-19 censorship regime.
  • We believe that the healthcare system is a uniquely American calamity that is undermining American lives.
  • I don't think I know enough to say, well, here's the plan. It's not my specialty.... But I don't think there's any way not to have that debate about how much we're going to spend on health care.... In finding our way forward, we've got to be able to find ways to deliver the quality care that everyone expects and that we're capable of providing to the maximum number of people.
  • If Americans are to have the courage to change in a difficult time, we must first be secure in our most basic needs. Tonight I want to talk to you about the most critical thing we can do to build that security. This health care system of ours is badly broken, and it is time to fix it. Despite the dedication of literally millions of talented health care professionals, our health care is too uncertain and too expensive, too bureaucratic and too wasteful. It has too much fraud and too much greed.
  • Those naysayers who say free, high quality, and comprehensive health care is too expensive under socialism have not evaluated the cost savings – to the tune of hundreds of billions of dollars a year – that will come from eliminating the corporate class.
  • The attacks on gender freedom from the right are not only united in their ideology, but increasingly in their rhetoric. Abortion and trans rights activists have long insisted that both abortion and transition are healthcare. It’s an apt and worthy argument, considering that both involve the interventions of medical professionals, both facilitate the wellbeing and happiness of those who receive them, and both result in horrific health complications when denied, from the high rates of mental distress and horrific, needless pregnancy complications that have been ushered in by Dobbs, to the dramatic rates of suicidal ideation and mental health problems in trans people who are denied the ability to transition. But increasingly, the right has begun to attack the notion of abortion and trans rights as healthcare, arguing that neither pregnancy nor non-transition constitute “illness.”
  • But while these practices of abortion and transition care constitute medicine and while their outcomes encourage health, it would be a mistake to fight the political battle for these services only on the ground of what counts as “healthcare.” Because the truth is that conservatives do not care about health – they don’t care about the integrity of the medical profession, or about patient outcomes, or about bodies, not really. They care about people, and about making sure that those people stay in line. In the grand tradition of feminists and queers alike, we should refuse to.
  • Communities marginalized by racial discrimination and oppression also face barriers in accessing healthcare, which severely and negatively impacts these communities. Indigenous Americans experience statistically worse healthcare outcomes than other populations in the US and already had difficulty accessing abortion long before Dobbs. The same is true for Black Americans, who have always faced high barriers to accessing healthcare. Hence, individuals who belong to more than one marginalized group, such as rural Black Americans, face especially high barriers. Access to abortion — and indeed to quality healthcare — has never been equitable for persons from marginalized communities in the US. Dobbs exacerbates many of these inequities by, for example, requiring individuals to travel farther for care and often out of state. Women of color are more likely to fall below the poverty line than white women and therefore feel the costs of interstate travel for healthcare particularly acutely. They are also less likely to have paid time off or paid sick leave to allow for travel, and face additional discrimination to obtain necessary healthcare.
  • Migrants and asylum seekers face further barriers in accessing reproductive healthcare. Irregular immigration status prevents millions of individuals from qualifying for health insurance programs in general, and creates particular barriers to accessing insurance that covers reproductive healthcare services. Immigrants also face mobility restrictions. Many US states require documentation of immigration status in order to receive a driver's license, and some of the most restrictive bans on abortion are in states (such as Texas) that host a network of Border Patrol checkpoints. Undocumented immigrants who seek to cross state lines to access abortion care are at risk of arrest, detention, and deportation. As Dr. Serapio explained, for individuals who are undocumented and/or unauthorized, or who have undocumented and/or unauthorized family members, travel out of state is therefore not an option due to the possible legal ramifications, even where resources are available.
    Youth with migrant status or with families that have mixed migration or documentation statuses face particular barriers in states where parental consent is required for abortion. For example, immigrant youth may lack access to a qualifying parent living in the country; immigrant parents may not be able to provide legally valid consent if they lack documentation of their legal status; and younger people with migrant status may be deterred from seeking healthcare or involving a parent by a general fear of immigration consequences for themselves or their families In these cases, immigrant youth may be forced to seek a judicial bypass or remain pregnant involuntarily.
  • In general, the states enacting bans have some of the worst healthcare systems in the country and have historically dedicated few resources for low-income residents. Lawmakers passing abortion bans have for years refused to address these problems.
  • It has largely skipped the national press’s attention — perhaps because of the presidential debate that evening — but a June 27 court ruling could have far-reaching negative consequences for U.S. health care and federalism. If [the] higher courts uphold it, the ruling will not only make conservative changes to state Medicaid programs difficult to impossible, but it could also permanently lock states into Obamacare’s Medicaid expansion to the able-bodied. …States like Georgia and Mississippi that spent the past year considering Medicaid expansion should view Boasberg’s ruling as a timely warning of the fiscal and legal perils awaiting should they acquiesce. The combination of much less flexibility for states regarding benefit packages, coupled with a potential inability to exit the Obamacare expansion, could turn Medicaid into a fiscal version of the Eagles’ “Hotel California” — states can check out any time they like, but they can never leave.
  • We therefore urge the Democratic Party to adopt the principle that America has a responsibility to offer every American family the best in health care, whenever they need it, regardless of income or any other factor. We must devise a system which will assure that every American receives comprehensive health services from the day he is born until the day he dies, with an emphasis on preventive care to keep him healthy.
    • Ted Kennedy, as quoted in Historic Documents of 1972. Washington, DC: CQ Press.
  • Congress has the authority under the Constitution to exempt individuals from any requirement that they perform medical procedures that are objectionable to their religious convictions. Indeed, in many cases, the Constitution itself is sufficient to grant an exemption to protect persons from official acts that infringe on their free exercise of religion.
  • Sarah Kliff spent the last year looking at over 1000 ER bills and has found outrageous facility fees, high costs for OTC drugs, and charges for simply sitting in the waiting room. Medicare for All would take these excess costs out of the equation...
  • Un pre-ACA days, a bout with a virus might not have been considered a preexisting condition. That's because many people tend to recover quickly from viruses.
    But in a blog post last week, researchers at the Rand Corp. suggested that COVID-19 could be seen differently by insurers. "Given the chronic problems [which can include organ damage, fatigue and confusion] associated with some COVID-19 cases, it is possible that some insurers would place restrictions on anyone who had a confirmed case of COVID-19," wrote Carter C. Price, Rand's senior mathematician, and Raffaele Vardavas, a mathematician at Rand who specializes in infectious disease models.
  • Twenty years ago, Kaiser surveyed health insurance underwriters and asked about a similar situation: a hypothetical applicant in perfect health except for "situational depression" following the death of a spouse. According to the survey, "in 60 applications for coverage, this applicant was denied a quarter of the time, and offered coverage with a surcharged premium and/or benefit exclusions 60% of the time."
    So both experts and consumers are concerned that invalidating the Affordable Care Act could mean that once again, individuals with preexisting conditions might not be covered — and such conditions could include COVID-19.
  • Modern observers accustomed to thinking of the medical profession as prestigious technically effective and highly paid are sometimes shocked to learn that it was none of those things in the nineteenth century. On the contrary, much of its history during that century was an uphill struggle to attain jut those attributes. Whereas European physicians entered the modern era with at least the legacy of well-defined guild structure-structures that took responsibility for teaching, maintained the right to determine who could practice, and exercised some control over the conduct an craft of the profession-American physicians did not. Because of its history as a colony, the United States attracted few guild-trained physicians, and consequently a formal guild structure never developed. Healing in this country started out primarily as a domestic rather than a professional skill (women and slaves often developed considerable local reputations as healers), and therefore anyone who claimed medical talent could practice-and for the most part could practice outside of any institutional controls of the sort that existed in Europe.
    It is true that some early colonies did establish different fee structures for “trained” as opposed to “folk” doctors, but these regulations were not supported by “enabling” legislation. “Trained” physicians had the right to charge more, but there were no regulatory mechanisms by which they could enforce their higher fees or, ore importantly, deny others the right to practice medicine. From the earliest days of the medical profession in this country, therefore, physicians wanted effective licensing laws that would do for them what the guild structures had done for their European colleagues, namely, restrict the competition.
  • In the early part of the nineteenth century, the fate of trained physicians became even worse. What few regulations had existed in the colonial period were swept away in the era of Jacksonian democracy, and medical practice became one vast free market. Moreover, during the second quarter of the century, deep doctrinal divisions appeared within the rank of trained physicians themselves. For the first third of the century, physicians had depended on a model of illness that called upon the use of drastic medical treatments such as bleeding or the administration of harsh laxatives and emetics. By the 1850, a new group of physician (including such luminaries as Oliver Wendell Holmes) rejected the use of this “heroic armamentarium” and earned for themselves the sobriquet of “therapeutic nihilists” inasmuch as they seemed to argue that anything a physician could do was probably ineffective and might be dangerous as well.
    Two other developments during the course of the century kept the social and professional status of medicine low. First, as the effectiveness of “heroic” medicine was called into question by some physicians themselves, there was a proliferation of healers who advocated new models of treatment. Thomosonians, botanics, and homeopath among others all developed “sets” of healing and claimed the title of doctor for themselves. These nineteenth-century sectarians flourished, perhaps in part because they tended to support relatively mild forms of treatment (bath, natural diets) instead of the “heroic” measures used by many doctors. Thu, regular physicians (those who had some semblance of formal training and who subscribed to the dominant medial model) found themselves in increasing competition with the sectarians, whom they considered quacks.
  • Concurrent with the emergence of the sectarian, there was an explosion of new medical schools: an estimated four hundred new ones opened during the course of the century. Unlike modern-day medical schools, whose strict admission standards are legendary, the majority of these schools were proprietary. Like modern-day vocational schools, they were open to all who could pay their fees, and precisely because they depended upon fees to survive, they were reluctant to fail anyone who could be counted on to pay tuition regularly.
    Members of the regular medical profession were therefore caught in a dilemma. In order to upgrade the profession’s status, they had to upgrade not only the standards of practice but also the education and qualifications of those who wished to practice. However, the prerequisite to such an upgrading-the restriction of the title of “doctor” to only the bet and the best-trained physicians-was difficult to meet because of the lack of licensing laws. Physicians faced the paradox that they could not obtain licensing laws until they were “better” than the competition, but becoming “better” depended on having licensing laws. The way in which physicians solved this problem was to bring them to the center of the abortion debate in America.
 
Did you know that of the 14 states with the highest number of painkiller prescriptions per person, they all went for Trump? ~ Bill Maher
  • Did you know that of the 14 states with the highest number of painkiller prescriptions per person, they all went for Trump?
    • Bill Maher, Real Time with Bill Maher, (January 20, 2017)
  • The head of Indianapolis-based insurance company OneAmerica said the death rate is up a stunning 40% from pre-pandemic levels among working-age people. “We are seeing, right now, the highest death rates we have seen in the history of this business – not just at OneAmerica,” the company’s CEO Scott Davison said during an online news conference this week. “The data is consistent across every player in that business.”
  • We are the richest country in the world. We spend more on health care than any other country. Yet we have the worst health care in the Western world. Come on. We can do better than this.
  • Sanders is still fighting the battle for single payer, Medicare-like coverage for all, even as fellow Democrats capitulated to the siren songs of the health and insurance industries. President Obama, himself a one-time advocate of single payer coverage, buckled to the insurance companies and its lobbyists and minions in Congress and agreed to health care legislation (the Affordable Care Act) that would continue to treat healing the sick as a profit center instead of a basic human right.
  • [W]hen I read articles or hear people say that the promise of human embryonic stem cells is dubious, I am very disturbed, because the only reason they get to say that is because the NIH has not been allowed to spend a single dollar on embryonic stem cell research. They have a budget now of $25 billion, and yet, because of lack of guidelines and because of the restrictions that have been imposed on the NIH so far, not one human embryonic stem cell project has been federally funded. That is why you are seeing such slow progress. And if we continue that way, I am going to be in this wheelchair for a long time that I do not need to be, and others like me.
  • The budget of the National Institute of Health in 1998 was 12 billion dollars. However, due to Congress and also got pressure applied by a number of disease groups, the budget for fiscal 2003 will be 27.2 billion dollars. And human ... HHS Secretary Thompson has said there is plenty of money available for the kind of research. Doubling the budget of the NIH and more within five years has been an extraordinary accomplishment. So to say that there isn't ... I mean, more money would be nice, but to say there's not enough money to do research into therapeutic cloning is a false statement.
  • On the other hand, you have to understand that our allies are not rogue nations. The U.K., Australia, Canada, Singapore, Israel, India, these are just some of the countries that have already passed therapeutic cloning. In fact, England passed it twice. The House of Lords considered it, passed it, the pro-life groups objected to it, they took time to listen to those groups and then they passed it a second time. And therapeutic cloning is allowed with strict government oversight. And to say that those countries are less moral than we are, I think is hubris on our part that's out of control.
  • In the early '80s, the public discourse about AIDS was divisive and ugly. Some elected officials said the disease was God's revenge on people who lived a certain lifestyle. The federal government wouldn't fund research for a cure. But, today, the NIH spends $1.8 billion on AIDS research annually, and the virus is no longer an epidemic in this country.
    So, how did we get from that climate of fear and animosity in the early '80s to where we are today? Well, it's by the extraordinary efforts of ordinary individuals, then change occurred, as it has time and time again throughout our history.
  • So if you believe in guaranteed high-quality universal healthcare, because you have seen the cost and the consequence of millions of our fellow Americans who have no healthcare or do not have enough healthcare, then let us come together around a policy that begins by prioritizing affordability in prescription medications that ensures that we bring down the cost of our premiums and our deductibles. And in a country, and in a country where too many of our fellow Americans are dying of diabetes in the year 2019, dying of the flu, dying of curable cancers, in a community, in a state, in a country where one of the largest providers of mental healthcare services is the county jail system, and in a nation that is in the midst of a maternal mortality crisis three times as deadly for women of color, then let us ensure that universal healthcare means all of us can see a primary care provider, all of us can get mental healthcare help, and that universal care means every woman makes her own decisions about her own body. We can give every American, every business in this country the choice to enroll in Medicare without eliminating plans that many Americans like for their families because those plans work for their families. Everyone able to see a doctor. Everyone able to afford their prescription. Everyone able to take their child to a therapist. No one left behind. No one priced out. We must get to universal guaranteed high-quality healthcare as soon as surely as we possibly can.
  • D.C. Women's Liberation succeeded for the first time in making informed consent a national issue. In the aftermath of the hearings, the U.S. government would require the pharmaceutical industry to include a patient information sheet with complete information on side effects in every package of birth control pills sold. The growing women's movement was prompting women to assert control over their bodies, and in doing so it changed forever the way Americans take prescription medications.
  • We're going to ask the wealthiest people and the largest corporations to start paying their fair share of taxes. We're going to take on the pharmaceutical industry and have Medicare negotiate prices. We're going to finally deal with child care and pre-K. Can you imagine in this country where you have free pre-K for every working family in America? We're going to have — end the disgrace of the United States being the only major country on Earth not to have paid family and medical leave. We're going to expand Medicare to cover dental, hearing aids and eyeglasses. We are going to got home health care... We're going to have — end the disgrace of the United States being the only major country on Earth not to have paid family and medical leave. We're going to expand Medicare to cover dental, hearing aids and eyeglasses. We are going to got home health care.
  • Let Mr. Barrasso go to the folks in Wyoming and ask them whether they think it's a good idea that they should be paying a third of their income in child care. Ask elderly people who don't have any teeth in their mouth whether they should be able to get dentures through Medicare. Ask the scientific community whether the time is now in a big way to deal with climate. Ask the ordinary American consumer whether we should take on the greed of the pharmaceutical industry, which charges us the highest prices in the world for prescription drugs.
  • Here are the principles that should guide the Congress as we move to create a better healthcare system for all Americans: First, we should ensure that Americans with pre-existing conditions have access to coverage, and that we have a stable transition for Americans currently enrolled in the healthcare exchanges. Secondly, we should help Americans purchase their own coverage, through the use of tax credits and expanded Health Savings Accounts –- but it must be the plan they want, not the plan forced on them by the Government. Thirdly, we should give our great State Governors the resources and flexibility they need with Medicaid to make sure no one is left out. Fourthly, we should implement legal reforms that protect patients and doctors from unnecessary costs that drive up the price of insurance – and work to bring down the artificially high price of drugs and bring them down immediately. Finally, the time has come to give Americans the freedom to purchase health insurance across State lines –- creating a truly competitive national marketplace that will bring cost way down and provide far better care. Everything that is broken in our country can be fixed.  Every problem can be solved.  And every hurting family can find healing, and hope.
  • For historical purposes remember, I was able to get rid of the INDIVIDUAL MANDATE, the most unpopular and expensive part of ObamaCare. You are no longer forced to pay a fortune for the “privilege” of NOT getting bad healthcare. This ended ObamaCare as we knew it. Thank you!
  • This section provides:
    No entity which receives a grant, contract, loan, or loan guarantee under the Public Health Service Act [42 U.S.C. 201 et seq.], the Community Mental Health Centers Act [42 U.S.C. 2689 et seq.], or the Developmental Disabilities Services and Facilities Construction Act [42 U.S.C. 6000 et seq.] after June 18, 1973, may—
    (A) discriminate in the employment, promotion, or termination of employment of any physician or other health care personnel, or
    (B) discriminate in the extension of staff or other privileges to any physician or other health care personnel, because he performed or assisted in the performance of a lawful sterilization procedure or abortion, because he refused to perform or assist in the performance of such a procedure or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting sterilization procedures or abortions.
    • 42 U.S.C. § 300a-7(c)(1) (2006).
  • Access to medical care has long bedeviled swaths of rural America — since 2005, 181 rural hospitals have closed. A 2020 KHN analysis found that more than half of U.S. counties, many of them largely rural, don’t have a hospital with intensive care unit beds.
    Pre-pandemic, rural Americans had 20 percent higher overall death rates than those who live in urban areas, due to their lower rates of insurance, higher rates of poverty and more limited access to health care, according to the Centers for Disease Control and Prevention’s 2019 National Center for Health Statistics.
  • In the absence of a statute, a physician is under no obligation to engage in practice or to accept professional employment.
    • Samuel Williston, "Williston on Contracts", §62:12 (4th ed. 2002)

“Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics” (2015)

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Douglas Nejaime & Reva Siegel, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics”, 124 Yale Law Journal 2516 (2015).

 
Refusal laws exempt medical providers from duties of patient care that are imposed by various bodies of state and federal law governing institutions and professionals. Licensing boards enforce professional standards against healthcare institutions, doctors, nurses, and pharmacists. Tort law, and specifically medical malpractice, provides redress to patients injured by breaches of professional duties. Institutional actors and individual providers are also subject to common law and statutory obligations, including those imposed on public accommodations and healthcare facilities. And patients have constitutional rights, including reproductive and medical decision-making rights, in the healthcare context.
Against this backdrop, refusal laws allow individuals and institutions in the healthcare industry to express conscience objections to interacting with persons who seek certain medical services—most commonly abortion, sterilization, and contraception. The laws provide religious exemptions for those who assert that abortion, sterilization, and contraception are sinful, and who object to acting in ways that, the claimants assert, would make them complicit in the sinful conduct of others. The laws appear to exempt healthcare providers from duties to patients. And they generally do not provide mechanisms to mediate their impact on patients.
  • A body of state and federal law allows persons and institutions in the healthcare industry to assert conscience-based refusals to provide patient services. While early healthcare refusal laws focused on the conscience claims of professionals opposed to performing certain procedures, over time refusal laws expanded through concepts of complicity to cover an increasing number of persons and institutions in healthcare services. The complicity-based conscience claims in Hobby Lobby resemble and perhaps descended from these legislated exemptions, popularly termed healthcare refusal laws or conscience clauses.
    • pp.3533-3534
  • Refusal laws exempt medical providers from duties of patient care that are imposed by various bodies of state and federal law governing institutions and professionals. Licensing boards enforce professional standards against healthcare institutions, doctors, nurses, and pharmacists. Tort law, and specifically medical malpractice, provides redress to patients injured by breaches of professional duties. Institutional actors and individual providers are also subject to common law and statutory obligations, including those imposed on public accommodations and healthcare facilities. And patients have constitutional rights, including reproductive and medical decision-making rights, in the healthcare context.
    Against this backdrop, refusal laws allow individuals and institutions in the healthcare industry to express conscience objections to interacting with persons who seek certain medical services—most commonly abortion, sterilization, and contraception. The laws provide religious exemptions for those who assert that abortion, sterilization, and contraception are sinful, and who object to acting in ways that, the claimants assert, would make them complicit in the sinful conduct of others. The laws appear to exempt healthcare providers from duties to patients. And they generally do not provide mechanisms to mediate their impact on patients.
    • pp.2534-2535
  • We can trace the emergence of healthcare refusals legislation to Congress’s passage of the Church Amendment in 1973. That legislation followed on the heels of two significant judicial decisions: the Supreme Court’s 1973 Roe v. Wade decision invalidating criminal prohibitions on abortion; and a 1972 federal district court decision enjoining a Catholic affiliated hospital, which was deemed to engage in state action because of its receipt of federal funding, from prohibiting sterilization at its facilities. The Church Amendment, which passed with near unanimous support, provided that receipt of federal funds would not provide a basis for requiring a physician or nurse “to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions.” It also provided that no “entity” could be compelled to “make its facilities available for the performance of any sterilization procedure or abortion if [such] performance . . . is prohibited by the entity on the basis of religious beliefs or moral convictions.”
    • pp.2535-2537
  • The separate normative order authorized by healthcare refusal laws may take a highly institutionalized form. For example, Catholic healthcare delivery is governed by the Ethical and Religious Directives for Catholic Health Care Services (Directives), promulgated by the U.S. Conference of Catholic Bishops (USCCB). Implementation of the Directives, which ensure that healthcare is delivered in conformance with Catholic theological principles regarding cooperation and scandal, is enabled by healthcare refusal laws. According to the Catholic Health Association, one in six patients in the United States is treated by a Catholic hospital. (In Washington State, approximately half of the state’s healthcare system is now Catholic-run.) It is clear, then, that healthcare refusal laws empower a substantial segment of the healthcare industry to operate in conformity with religious principles that dictate limitations on services relating to abortion and contraception.
    But the Catholic hospital system is not the only organization coordinating claims on refusal laws. Religious hospitals represent nearly a fifth of the healthcare delivery system in the United States, and eight of the twenty-five largest healthcare systems are religiously owned. Even secular hospitals may act on a traditional norm widely shared in the community. And other loosely affiliated providers may act on the basis of shared convictions. For example, resistance to emergency contraception may be widespread and include both hospitals and pharmacies. In states and regions where abortion and certain forms of contraception are stigmatized, healthcare refusal laws, along with other restrictions, may create a system in which the disestablished sexual norms continue to be enforced. With widespread, cross-denominational assertion of claims for exemption, accommodation of complicity-based conscience objections can have far-reaching effects.
    • pp.2556-2558
  • On the federal level, a 1996 omnibus appropriations bill provided that neither the federal government nor any state or local government could “subject any health care entity to discrimination” based on the entity’s refusal to provide abortion services, abortion training, arrangements for abortion services, or referrals to other entities that provide abortion services. Some states, particularly when covering contraception, explicitly included the provision of information among the list of covered acts. Colorado law, for instance, provides: “No private institution or physician, nor any agent or employee of such institution or physician, shall be prohibited from refusing to provide contraceptive procedures, supplies, and information when such refusal is based upon religious or conscientious objection . . . .”
    • pp.2538-2539
  • Mississippi, which in 2004 passed the nation’s broadest healthcare refusal law, 94 provides an illustration of a provision drafted with the evident aim of making as many persons eligible for exemption as possible. The law defines “health care service” to include:
    any phase of patient medical care, treatment or procedure, including, but not limited to, the following: patient referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing, dispensing or administering any device, drug, or medication, surgery, or any other care or treatment rendered by health care providers or health care institutions.
    Mississippi’s law defines “health care provider” with similar breadth:
    “Health care provider” means any individual who may be asked to participate in any way in a health care service, including, but not limited to: a physician, physician’s assistant, nurse, nurses’ aide, medical assistant, hospital employee, clinic employee, nursing home employee, pharmacist, pharmacy employee, researcher, medical or nursing school faculty, student or employee, counselor, social worker or any professional, paraprofessional, or any other person who furnishes, or assists in the furnishing of, a health care procedure.
    • pp.2539-2540
  • [A]s the Mississippi law demonstrates, as healthcare refusal laws grew to include contraception, some states specifically covered pharmacists and pharmacies with objections to selling contraception.
    As changes occurred in the economic organization of the healthcare field, conscience legislation began to apply the logic of complicity to insurance plans’ and HMOs’ financial relationships. In 1997, Congress passed a Balanced Budget Act that provided conscience provisions for Medicaid and Medicare managed care providers that objected to providing, reimbursing for, or covering abortion counseling or referral. A 2004 appropriations bill broadened the de finition of a healthcare entity to include HMOs and insurance plans, and withheld federal funding from any federal agencies or state governments that discriminated against healthcare entities on the basis of their refusal to cover, pay for, or refer for abortion. In 2008, the Bush Administration adopted regulations that expanded the coverage of the Church Amendment itself, defining “Health Care Entity” to include HMOs and health insurance plans and assistance to include “counseling, referral, training, and other arrangements for the procedure.
    • pp.2540-2541
  • Overall, the claims upon which recent healthcare refusal laws are based contrast sharply with the claims featured in the cases that Congress referenced in RFRA. Rather than invoking unfamiliar religious beliefs, the claimants object to laws departing from traditional social norms. The claims for accommodation are generally not asserted in courts; instead, they are primarily asserted in politics, and redressed through legislation. The accommodations provided by healthcare refusal laws are not designed for particular religious claimants, such as the Amish or members of the Native American Church; instead, they authorize exemptions for persons asserting conscience objections based on any religion or, with the inclusion of “moral” objections, no religion at all. Accommodation of these claims does not entail costs borne by society as a whole; instead, accommodation has consequences for the third parties whose conduct is at issue. Crucially, healthcare refusal laws make little or no effort to offset their impact on third parties.
    • p.2542
  • [A]s we have seen, healthcare refusal laws that accommodate claims of complicity are not limited to Catholics, and these laws have become a major focal point of a cross-denominational coalition that includes evangelical Protestants. In some areas, the accommodations furnished by healthcare refusal laws may align the actual provision of hospital services with majority religious and moral beliefs in the locality. Widely shared norms may result in the systematic denial of goods or services, even without formal organization around a governance instrument like the Directives. Healthcare providers may subscribe to those norms or may feel pressure to conform to them in order to avoid controversy and maintain community standing. Indeed, some healthcare refusal laws do not even specify that the refusal be based on the provider’s religious or moral objection, thereby seemingly authorizing refusals for any reason.
    • p.2572

“The Constitutional Right Not to Kill” (2012)

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Mark L. Rienzi, “The Constitutional Right Not to Kill”, Emory Law Journal, Volume 62, Issue 1, 2012

  • At common law, physicians actually had no duty to treat any patient at all, even in an emergency.
    • p.147
  • Even before Roe was decided, states that permitted abortion were taking action to protect those physicians or hospitals that objected to participation in abortions. In 1971, New York enacted a criminal law prohibiting discrimination against any person for his or her refusal to participate in abortions. Many other states—including Arkansas, Alaska, Colorado, Delaware, Florida, Georgia, Hawaii, and Maryland—included explicit conscience protections for individuals and institutions in the same statutes that liberalized their abortion laws.
    That trend of protecting conscientious objectors to abortions continued and dramatically expanded in the aftermath of Roe. Today, virtually every state in the country has some sort of statute protecting individuals and, in many cases, entities who refuse to provide abortions. Most of these statutes arose in the decade following Roe. Some states expressly limit this protection to the practice of abortion, which is treated specially. Other states protect conscience for other procedures as well.
    • pp.148-149
  • At the federal level, Congress likewise took almost immediate action after Roe to protect physicians and hospitals from being forced to perform abortions. In particular, as part of legislation known as the “Church Amendment,” Congress clarified that recipients of certain federal funds were not required to provide abortions, and that those facilities were prohibited from discriminating against employees who refused to participate in abortions.
    When inserting the particular language in the Church Amendment that protects individual conscience, Representative Heinz said the following:
    Mr. Chairman, freedom of conscience is one of the most sacred, inviolable rights that all men hold dear. With the Supreme Court decision legalizing abortion under certain circumstances, the House must now assure people who work in hospitals, clinics, and other such health institutions that they will never be forced to engage in any procedure that they regard as morally abhorrent.
    . . . [In addition to protecting institutions from being forced to perform abortions,] we must also guarantee that no hospital will discharge, or suspend the staff privileges of, any person because he or she either cooperates or refuses to cooperate in the performance of a lawful abortion or sterilization because of moral convictions.
    . . . .
    Congress must clearly state that it will not tolerate discrimination of any kind against health personnel because of their beliefs or actions with regard to abortions or sterilizations. I ask, therefore, that the House approve my amendment . . . .
    Without further discussion, the House promptly passed the Amendment and the bill by an overwhelming margin: 372–1. The Church Amendment was ultimately enacted and signed into law in 1973.
    • pp.150-151
  • In the years prior to Roe, at least fourteen states had already liberalized their abortion laws. These pre-Roe liberalization laws frequently came with the creation of express statutory protection for physicians and other healthcare personnel and institutions that refused to participate in abortions. Likewise, when it decided in 1970 to support greater access to abortion, the American Medical Association also resolved that “[n]either physician, hospital, nor hospital personnel shall be required to perform any act violative of personally-held moral principles.”
    Once the Court’s decision in Roe established a constitutional right to abortion, state and federal legislatures acted quickly and decisively to confirm that no physician could be forced to provide an abortion. At both the state and federal levels, legislators quickly enacted conscience statutes to protect individuals and institutional healthcare providers from being forced to participate in abortions. These laws were not limited solely to the direct performance of abortion. Instead, they protected against compulsion to participate even indirectly, including by referral or providing space.
    • pp.170-171

See also

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Wikipedia
 
Commons
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