Michigan Pushes For Healthcare Morals Clause

A new law that has passed both the Senate and House in Michigan is one of the newest to tackle the issue of whether or not providers and insurers should be required to offer a service if it goes against their religious or ethical beliefs. 

Senate bill 975 would protect employers, educators, providers and insurers from liability and penalty if they choose not to perform or pay for a service, like an abortion, or to cover non-emergent care for patients who are HIV-positive.

The bill passed relatively quietly through the Legislature last week as another bill that would make Michigan a right-to-work state drew protests at Lansing and national headlines.

It is unknown yet if Gov. Rick Snyder, a Republican, will sign the bill into law. SB 975 has the support of mostly conservative Republican lawmakers. Snyder has been more moderate on some issues, but he has been trying to distance the state as much as possible from the ACA.

This kind of legislation will likely only be more prevalent as medications like the Plan B pill become more widely available and backlash is seen against the contraception mandate passed by the Obama administration as part of the Patient Protection and Affordable Care Act.

Most states, including all 11 in the Midwest, currently have statutes that allow providers to deny providing an abortion, according to the Guttmacher Institute, an organization that provides research and policy analysis regarding sexual and reproductive health. 

Illinois providers can refuse providing contraception and sterilization can be denied by providers in Illinois, Kansas and Wisconsin.

Farr Curlin, an instructor and a member of the MacLean Center for Clinical Medical Ethics at the University of Chicago, said these laws are being created because providers are feeling new pressure to participate in practices to which they object – not because they are newly objecting to services. 

“The old status quo was that physicians had wide discretion to decide which practices they could not in good conscience participate in,” he said. “They were given space to refuse.”

This status quo applies to much of medicine practiced today. If a patient wants a gallbladder removal, but a doctor disagrees, no one would argue that the physician should go ahead and do it.

But Curlin said questions are now being raised about whether or not providers should have this kind of freedom, particularly with something like emergency contraception which has to be provided within a certain time frame to be effective. And state legislators have begun using their political will to shore up those freedoms. 

“In areas of moral controversy in the broader culture, people start to think of it in problematical ways,” he said. “People think doctors are imposing some personal value or prejudice and it exposes the fact that there isn’t agreement in the margins about whether these practices belong in medicine.”

If a procedure is good, sound medicine, doctors are obligated to provide the service. Curlin said the crux is deciding what procedures are medically necessary.

“It’s not so obvious that an elective abortion is about a woman’s health in the same way taking out a diseased gallbladder is,” he said. “Or gender transformation is the same matter of health that removal of cancer is.”

The American Medical Association has said that physicians should provide care to their patients with just a few exceptions: the service is beyond their competence; the treatment isn’t scientifically valid; or if it is incomparable with a physician’s religious or moral beliefs. 

But there are some exceptions, in that providers have to provide services to patients with HIV or AIDS or if there is a medical emergency. They also cannot refuse a patient based on gender or sexual orientation. 

Margaret McLean, director of bioethics at Santa Clara University in California, said the reason of conscience issue has “vexed” the profession for some time. She said the situation gets tricky when a procedure would not be available to a patient if a provider refuses. For instance, a woman wants her tubes tied after delivery and the sole medical provider in her area is a Catholic hospital. 

“We have to understand how easy it will be for a patient to find a physician who will work with them and their values or if they can have a prescription filled by someone else,” she said. “Is it possible and reasonable and if it doesn’t happen, how much risk is the patient put in?”

And these kinds of issues will only broaden as medicine advances. Len Fleck, professor in the Center for Ethics and Humanities in the Life Sciences at Michigan State University, said genetics will likely be the newest battleground. One instance is cystic fibrosis. 

If a couple knows they are both carriers of the disease, there is a great chance that their child will have the disease, or at least be a genetic carrier. One way around that is to give the woman drugs to hyperovulate, inseminate the eggs, analyze all of the embryos and implant the ones that do not contain the gene. 

This is a relatively uncommon procedure, but Fleck thinks more couples will want this performed as genetic testing becomes cheaper and more commonplace. It costs $50,000 and is not covered by insurance. The next big argument is whether or not procedures like this should be covered by insurers. 

In the end, Fleck, McLean and Curlin agree that practicing medicine by law is not good practice. 

They contend that there should be some laws to hold physicians accountable and make sure that patient populations – like those with HIV – are rightly cared for; that medications, particularly narcotics, are regulated; and that patients must be treated during a life-or-death situation. 

“Medicine is best handled between the patient, physician and healthcare team rather than the blunt instrument the law can be,” McLean said. “Laws that are clear in the books can be problematic in real life. The book is clear and real life is messy.”