Sunday, September 19, 2004

The Jigsaw Puzzle of Doom

To get an accurate picture of the politicians' movement to legalize denial-of-care for women, I needed to review the pertinent material in an orderly manner. [Yes people, I need chronology, clear definitions, and a table format... or even a list.] So I read various sites, did some reorganizing, and what follows is the result.

Note: a lot of the text in my post is the source's original text, moved around and not always in italics in order to preserve clarity. Also, I've not read all the amendments/bills in full.

In 1973 we have the Supreme Court Roe v Wade decision.

In 1973 the Church Amendment, 42 U.S.C. 300a-7 (named after its sponsor, the late Sen. Frank Church) is passed. It establishes that no federal, state, or local government can require individual or institutional health care providers, such as hospitals and health centers, that receive federal funds under particular public health programs to perform or assist in performing abortions if these procedures conflict with their religious or moral convictions. It also prohibits discrimination, such as employment discrimination, against such health care providers that refuse to perform abortions.

Of note:

1. This amendment applies only to individuals receiving funding under particular federal health programs, including the Public Health Service Act, the Community Health Centers Act and the Developmental Disabilities Services and Facilities Construction Act, rather than to all entities receiving funds under the Labor, Health and Human Services and Education ("Labor-HHS-Education") Appropriations bill.

2. This amendment requires a religious or moral basis for the refusal.

In 1996 the Coats Amendment, 42 U.S.C. 238n was passed. It was passed as a response to the Accreditation Council for Graduate Medical Education (ACGME) adopting a professional standard requiring obstetrics and gynecology residency programs to provide abortion training. The ACGME standard allows an exemptions for programs or physicians with religious or moral objections, so long as programs opting out refer individuals in their program who want such training to other institutions. Under Coats, in order to preserve federal funding and legal status, the training programs no longer need a religious or moral basis for their noncompliance and also are no longer obligated to refer health care practitioners desiring abortion training to other programs. Coats also prohibits discrimination against any such training programs or individual practitioners refusing to undergo abortion training in these programs.

Of note:

1. Although this amendment no longer requires any justification for the refusal, it is very narrowly tailored to apply only to health professional training programs.

In 2003, inspired by the U.S. Conference of Catholic Bishops, the Abortion Non-Discrimination Act (ANDA) or HR 3664, introduced by Rep. Michael Bilirakis (R-FL), passed by the House, bypassing consideration of the bill, on a vote of 229 - 189. ANDA amends Coats. [However, according to the source, ANDA would really radically alter Coats]. According to Rep. Bilirakis' site, the latest major action was on 12/17/2003: ANDA was referred to the House Subcommittee on Health. [Guess who the Chairman of the Health Subcommittee is? Hint: his initials are M.B. ... and he's from Florida.]

Of note:

1. ANDA radically expands existing refusal clauses to include, among other things, the widest array of entities. For example:

(1) in the section heading, by striking `REGARDING TRAINING AND LICENSING OF PHYSICIANS' and inserting `REGARDING TRAINING, LICENSING, AND PRACTICE OF PHYSICIANS AND OTHER HEALTH CARE ENTITIES';
...

(A) by inserting `or other health professional,' after `an individual physician';
...

(C) by inserting before the period the following: `, a hospital, a provider sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization or plan'.

2. ANDA affects funding for all health-related activity. For example:

(2) in subsection (a)(1), by striking `to perform such abortions' and inserting `to perform, provide coverage of, or pay for induced abortions'; and

3. ANDA does not require any justification for the refusal.

On July 14, 2004(?) the House Appropriations Committee marked up* the fiscal year (FY) 2005 Appropriations bill (HR 5006) funding the Departments of Labor, Health and Human Services and Education ("Labor-HHS-Education"). Rep. Dave Weldon (R-FL) offered an amendment to this bill that would establish a Federal Refusal Clause (FRC). [Rep. Weldon does not list FRC on his sponsored bills page. His contact information is here. However, Maya illuminates us: Since the FRC was added by a member of the committee during markup, there won't be an amendment or bill number for it. Amendments only get numbers if they're offered during floor debate in the full House. The place to find Weldon's amendment is in the report that the committee sent to the full house--this is called report language, and I'll see if I can track it down.] An she did, indeed, track FRC here (PDF, page 99):

(d)(1) None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortion. In this subsection, the term "health care entity" includes any individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.

FRC is modeled after the ANDA. Under FRC, any federal, state or local law or regulation that preserves access to abortion services and information could be deemed discriminatory and thus not enforceable, unless the government body enforcing the law would be willing to sacrifice all federal assistance made available through the Labor-HHS-Education Appropriations bill. Any health care entity, including individual physicians or other health care professionals, hospitals, provider-sponsored organizations, HMOs, health insurance plans, or any other kind of health care facility, organization, or plan, could be allowed to refuse to perform, pay for, provide coverage of, or refer for abortion. The Appropriations bill (HR 5006) (and with it, the Weldon or FRC amendment) was passed by the House.

Of note:

1. Although the FRC amendment appears to be identical in scope to ANDA, FRC's enforcement mechanism goes beyond ANDA's (which affects funding for all health related activity) to include all funding appropriated in the Labor-HHS-Education Appropriations bill.

2. The FRC amendment radically expands existing federal refusal clauses to include, among other things, the widest array of entities.

3. The FRC amendment also goes far beyond state refusal clauses** in sanctioning the refusal of a vast array of new entities to refuse to provide abortion-related services.

4. According to the source, although FRC professes to prevent discrimination, it discriminates against not only women needing abortion services, but also states' authority to pass and enforce state laws and constitutional protections safeguarding a woman's right to chose.

5. Rep. Nita Lowey (D-NY) argued in opposition to the amendment. She said that health care institution--such as hospitals and clinics--should not be permitted to "gag" doctors. She contended this measure interferes with the doctor/patient relationship and would result in women being denied medically appropriate information or services.


* A committee "markup" is when the full committee reviews the bill before they pass it and refer it to the full house. In a real way, this is where the bill actually gets written--the introduced version is often just a guide for the committee. Major changes can be made during markup, and this is the easiest place for members on the committee to make changes.

** Forty-five states have passed legislation allowing individual health care practitioners to refuse to perform abortions. Forty-one states have extended this right of refusal to health institutions (21 of these apply to any health facility and 20 apply to hospitals only). Nearly half of state abortion refusal laws require a religious or moral basis for the refusal (22 of 45 states). The majority of state exemptions require the service to be provided if a woman's life is in danger.


Note: I have modified the original post to integrate the outstanding information kindly e-mailed by Maya, and CE Petro.




3 Comments:

At 2:55 PM, Anonymous Anonymous said...

Things I can add:
--A committee "markup" is when the full committee reviews the bill before they pass it and refer it to the full house. In a real way, this is where the bill actually gets written--the introduced version is often just a guide for the committee. Major changes can be made during markup, and this is the easiest place for members on the committee to make changes.

--Since the FRC was added by a member of the committee during markup, there won't be an amendment or bill number for it. Amendments only get numbers if they're offered during floor debate in the full House. The place to find Weldon's amendment is in the report that the committee sent to the full house--this is called report language, and I'll see if I can track it down :-)

--As for HR 5006, the bill itself definitely passed, but no one (including me) has been able to find the FRC in it. My suggestion? Call Weldon's office and ask them if the Federal Refusal Clause he sponsored in the Labor-HHS approps bill passed the full house. You may have to talk to his health or appropriations staffer.

Maya
capitolhilldem@hotmail.com
(Someday, I'll get a Blogger account...)

 
At 3:54 PM, Anonymous Anonymous said...

Aha! Found it:
http://tinyurl.com/5wfcc (Warning: PDF)
It's Title V, Section 508d. Page 99 in the PDF document linked above, about half way down the page.

Maya
capitolhilldem@hotmail.com

 
At 4:02 PM, Blogger CE Petro said...

I believe, but am not positive, that the FRC is at the end of 5006, under General Provisions (or something similar, going by memory here). This same language was added to the Labor, HHS, & Education appropriation bills, HR 2660 (2004) and HR 246 (2003). I also believe that this particular language is considered to be the FRC.
SEC. 507. (a) None of the funds appropriated under this Act , and none of the funds in any trust fund to which funds are appropriated under this Act , shall be expended for any abortion .

(b) None of the funds appropriated under this Act , and none of the funds in any trust fund to which funds are appropriated under this Act , shall be expended for health benefits coverage that includes coverage of abortion .

(c) The term `health benefits coverage' means the package of services covered by a managed care provider or organization pursuant to a contract or other arrangement.

SEC. 508. (a) The limitations established in the preceding section shall not apply to an abortion --

(1) if the pregnancy is the result of an act of rape or incest; or

(2) in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.

(b) Nothing in the preceding section shall be construed as prohibiting the expenditure by a State, locality, entity, or private person of State, local, or private funds (other than a State's or locality's contribution of Medicaid matching funds).

(c) Nothing in the preceding section shall be construed as restricting the ability of any managed care provider from offering abortion coverage or the ability of a State or locality to contract separately with such a provider for such coverage with State funds (other than a State's or locality's contribution of Medicaid matching funds).

(d)(1) None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.

(2) In this subsection, the term `health care entity' includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.


HR5006 did pass. When querying thomas.loc.gov, at the end of the bill title in paranthesis states the status of the bill. So, when doing a query you may get 3 of the same bill, each with a different status. The most recent entry for HR5006 is "EH" and in parenthesis you read "Engrossed as Agreed to or Passed by House". I don't believe there will be a separate bill number if this is an amendment to an appropriations bill.

But, calling Weldon's office is a good idea. At least that way we may get some clarification.

 

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