Wednesday, January 29, 2014

Hey ACLU, why not try reading the bill first?

Apparently the ACLU writer, Jenny Lee, who wrote a recent article titled: "Alabama Hospitals To Pregnant Women – "Sorry, honey, we won’t help you here." couldn't actually be bothered to read the bill she was reporting on.

Her article kicks off with some first-rate fear mongering:
"It's what every pregnant woman fears. There she is excited to be pregnant for the first time. She is finally getting over the morning sickness, and she and her husband have just shared the happy news with their friends and family. Then, one night the unimaginable happens. She is lying in bed and she begins to feel immense pain and cramping. She knows something isn't right. She goes to the bathroom and she sees blood. Quickly, she wakes up her husband and the two of them rush to the emergency room.

All miscarriages can be devastating. But, for women in Alabama, this nightmare could soon get a lot worse. This week, the Alabama Senate is set to consider a cruel bill (HB 31) that would permit the hospital staff, including any doctor, nurse, counselor, or lab technician, to refuse to participate in any phase of patient medical care related to ending a pregnancy, even if that is what a patient like this woman needs to protect her own health and future fertility.

Yes, you heard that right. Under this law, if you or a loved one is pregnant and go to an emergency room in Alabama because of serious complications, every medical professional in that emergency room could refuse to help you if the care you needed to protect you from serious harm to your health required ending the pregnancy."
But.................... In reality, you did not "hear that right". Or perhaps more accurately, she lied to you.

Unlike Ms. Lee (and virtually everyone on Facebook who passed along her horror story), I decided to follow the link through to the bill itself and see what it actually had to say. Turns out, while I have some major criticisms of it as a libertarian, it absolutely would not do anything that the ACLU is claiming it would do.

If you want to follow along from the source, check out "HB31: Health Care Rights of Conscience Act".

Fortunately for me, I was waiting for a new documentary edit session to render, so I had a little time to kill, and the bill ended up only being 7 pages long, so it was actually a fairly quick read. As a result, I felt compelled to do a breakdown of each section of the bill on Facebook, and since I've already done the work, I'll share it here for posterity.

The following are direct quotes from the bill itself, along with my editorial comments, starting from the top.

Relating to health care, to allow health care providers to decline to perform any health care service that violates their conscience and provide remedies for persons who exercise that right and suffer consequences as a result.


Section 1.
This act may be known and cited as the Health Care Rights of Conscience Act.
So far so good. Making sure that people are free to make their own decisions and follow their own consciences regarding what they do for a living. This is a good thing if you don't like slavery... and I don't.

But, of course, the "stated purpose" of laws usually isn't the same thing as what it will actually do. So let's see what the new rules actually say, shall we?
Section 2.
The Legislature finds and declares:
(1) It is the public policy of the State of Alabama to respect and protect the fundamental right of conscience of individuals who provide health care services.
(2) Without comprehensive protection, health care rights of conscience may be violated in various ways, such as harassment, demotion, salary reduction, termination, loss of privileges, denial of aid or benefits, and refusal to license, or refusal to certify.
(3) It is the purpose of this act to protect religious or ethical rights of all health care providers to decline to counsel, advise, provide, perform, assist, or participate in providing or performing certain health care services that violate their consciences, where they have made their objections known in writing.
(4) It is the purpose of this act to prohibit discrimination, disqualification, or coercion upon such health care providers who decline to perform any health care service that violates their conscience and who object in writing prior to being asked to perform such health care services.
(1) One would think it would be their policy to make sure everyone in EVERY field was uninhibited from pursuing their own values in their private and professional lives, but fine, good...

(2) I don't entirely agree that all of these things qualify as a rights violation - since an employer also has rights and should be able to fire you if you refuse to do the job they want you to do, but since this is just establishing a set of premises from which the law is being written, cool...

(3) Again, stated purpose vs. results? We'll see... But I am totally behind the stated purpose. You cannot morally compel someone to participate in something they believe is immoral. Just as it is horrific to conscript an army, surely it is also morally appalling to conscript health care workers into performing acts against their will. Doing so is, in fact, tantamount to indentured servitude/slavery, which any libertarian should obviously oppose.

(4) Now here's where things get a little tricky... Anti-discrimination laws are problematic because they are often violations of the rights of employers. However, as anti-discrimination laws go, this one doesn't seem so bad.... What it's saying here is that a hospital or clinic administrator can't punish or force someone to perform a procedure against their will, but also, the employee has to establish their objection *in writing* in advance.

As far as I can tell, this is just establishing that people have the right - as they should - of negotiating a contract that establishes which procedures they're willing to do and which they aren't. For example, if a doctor refused to perform circumcisions, he could write that into his contract and no hospital administrator could force him to do so afterward.

That's good, right?
Section 3.
The following words and terms shall have the meanings ascribed to them in this section, unless otherwise required by their respective context:
(1) CONSCIENCE. The religious, moral, or ethical principles held by a health care provider.
(2) DISCRIMINATION. Discrimination includes, but is not limited to: Hiring, termination, refusal of staff privileges, refusal of board certification, demotion, loss of career specialty, reduction of wages or benefits, adverse treatment in the terms and conditions of employment, refusal to award any grant, contract, or other program, or refusal to provide residency training opportunities.
(3) HEALTH CARE PROVIDER. 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, nurse's aide, medical assistant, hospital employee, clinic employee, nursing home employee, pharmacist, 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 health care services.
(4) HEALTH CARE SERVICE. Any phase of patient medical care, treatment or procedure that is limited to abortion, human cloning, human embryonic stem cell research, and sterilization, and is related to: Patient referrals, 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 or provided by health care providers. Health care service does not include notifying a member of a health care institution's management of a patient inquiry about obtaining a health care service that a health care provider believes may violate his or her conscience.
(5) OBJECT IN WRITING. To provide advance notice in 16 a signed written document to an authorized agent of his or her employer, board, or other oversight agency of a particular health care provider. The notice shall be provided within a reasonable time, but in no case less than twenty-four (24) hours prior to any service or procedure objected to under this section by the health care provider.
(6) PARTICIPATE. To counsel, advise, provide, perform, assist in, refer for, admit for purposes of providing, or participate in providing, any health care service or any form of such service. Participate does not include compliance with a health care institution's policy and procedure which states that a health care provider must notify a member of the health care institution's management of a patient's inquiry about obtaining a health care service that the health care provider believes may violate his or her conscience.
Definitions of terms are good. I'm sure there could be some debate around this, but I have no objections here. They're even pretty specific definitions compared to most bills I've ever read.

Here comes the real meat of this thing...
Section 4.
(a) A health care provider has the right not to participate, and no health care provider shall be required to participate, in a health care service that violates his or her conscience when the health care provider has objected in writing prior to being asked to provide such health care services.
(b) No health care provider shall be civilly, criminally, or administratively liable for declining to participate in a health care service that violates his or her conscience except when failure to do would immediately endanger the life of a patient.
(c) It shall be unlawful for any person, health care provider, health care institution, public or private institution, public official, or any board which certifies competency in medical or health care specialties to discriminate against any health care provider in any manner based on his or her declining to participate in a health care service that violates his or her conscience, where the health care provider has made his or her objections known in writing. Provided further, students may be evaluated based on their understanding of course materials, but no student shall be required to perform a health care service or be penalized because he or she subscribes to a particular position on one or more of the four health care services.
(d) Notwithstanding any other provision in this act, in a life-threatening situation where no other health care provider is available or capable of providing or participating in a health care service, a health care provider shall provide and participate in treatment, care, or procedures until an alternate health care provider capable of providing or participating in the emergency treatment, care, or procedures is found or otherwise becomes available.
(e) Except as otherwise provided in this section, a hospital, as defined in Section 22-21-20, Code of Alabama 1975, or other health care entity, and any employee, physician, member, or person associated with the hospital or other health care entity is immune from liability for any damage caused by the refusal of a health care provider to participate in a health care service defined in this act at a facility owned, operated, or controlled by the hospital or other health care entity.
(a) Good! If you object to performing certain actions, and do so in writing (ie. establish legally binding contractual terms that exclude you from certain procedures) then no one has a right to violate that contract. This is excellent.

(b) You're not liable for the consequences of not doing X procedure when you've objected (again, in writing, prior to the request for service) on moral or conscientious grounds. Naturally, this makes sense. Again, taking the circumcision example. If I was a doctor, and said up-front that I would absolutely not be performing any circumcisions, families could not sue me over this... And they shouldn't be able to. You cannot compel me to perform a service I find morally objectionable - unless you're prepared to endorse slavery, and I hope you're not.


If I have a right to pick which services I will and will not perform, a hospital manager/owner has the right to only hire people who are willing to perform all the procedures that they want to provide at their hospital... If I object to abortion, then you can't compel me to perform one. But if you run a hospital and you want to be sure you offer abortions, I can also not rightfully compel you to hire me.

Again... From a libertarian perspective, this is all about giving individuals their own autonomy. No slavery. It's really quite simple... But in Section 4, provision C, this bill goes too far.

That said, government funded/run hospitals confound matters somewhat. More on that if anybody asks.


In this provision, people's moral objections are suspended and indentured servitude is instated in times of life-threatening emergency. Strictly speaking, this is anti-libertarian and problematic. Like the problem in provision C, this problem would be solved by fully private clinics and hospitals, but to be honest, it seems like a pretty decent compromise.

The hospital can't discriminate against you or fire you for not agreeing to perform certain procedures that you find morally objectionable, BUT, you have to perform them no matter what, in the event that someone is about to die.

Not the worst thing that's ever happened. But it's basically two wrongs trying to make a right. It could be better, but it's not that bad.

(e) Limited liability for people who have contractually refused to perform certain services. Again, this is fine. You should not force someone or legally punish someone for electing not to do something they find morally objectionable.

Now... Sections 5-9 are perfunctory stuff that I don't really have any real comments on. As I said, the meat of it is what's written above, so I'll stop there and you can read more if you'd like

In the final analysis, here's what I found.

  1. This bill does not make miscarriages, or indeed, ANY procedures "illegal".
  2. This bill does not prevent people from seeking abortions, circumcisions, stem cell treatments, or literally any type of procedure that exists anywhere on planet earth. There is no restrictive language what-so-ever that would make any specific procedure illegal.
  3. It does attempt to guarantee that health care professionals are not treated as slaves or indentured servants and forced to participate in procedures that they find objectionable. Chalk up several points on the libertarian scoreboard for Alabama on this attempt. Slavery is wrong, m'kay?
  4. It does have a major weak spot in two ways..
    a. It prohibits hospital administrators and health care employers from discriminating against people who do not share their beliefs, which violates their right to association, and subsequently means that they may have to keep people on staff who refuse to perform procedures that are officially offered by the hospital/clinic/etc. This is unfortunate.
    b. The prohibition in (a) is partially made up for by a second clause that forces people to perform morally objectionable procedures in life-threatening situations, which means that from a patient's standpoint, the worst they should legally be able to experience is the minor inconvenience of asking one doctor to do an abortion, or a circumcision, or whatnot; being told "no", and subsequently needing to find a different doctor for the same procedure. However, if they're in real trouble, say they need an abortion or the mother and baby will die, then the doctor has to perform that procedure anyway, regardless of his beliefs.

    But... To my mind, (a) + (b) more or less cancel each other out... Again, two wrongs don't make a right, but in this case, they add up to a bit of a wash for actual consequences.
  5. Even if the bill did anything remotely like what was claimed by the ACLU, the likelihood of a majority of doctors literally anywhere in the United States actively trying to deny treatment for miscarriages is a ridiculous claim that I'd challenge anyone to provide some shred of support for... I'm certain that support won't be coming from the ACLU's writing staff.
All in, I'd say this bill isn't that bad. Could be better, but it does not - in any way - say what the ACLU headline said it did, nor what the lady who I originally saw posting about it claimed.

I'm getting rather tired of a media culture built on outrage and misinformation... Aren't you?