WASHINGTON WATCH
Dealing with the age of conscience
By Lisa Kaeser, JD
Senior Public Policy Associate
Alan Guttmacher Institute
Washington, DC
As the ongoing — and fundamental — changes to the nation’s health care system continue, the question of who will offer which services has become critical to anyone with a choice about health care coverage. The expansion of managed care, multiple mergers among health care organizations, and increasing government involvement in determining the package of services to be offered to the insured have contributed to the new landscape of health care.
In the course of deciding what services to offer, individual health care providers and the administrators of health plans also are determining what services they will refuse to provide due to moral or religious objections.
Refusal to provide certain health care services because of conscientious objections has been sanctioned by the federal government for many years. In 1973, shortly after the Supreme Court’s decision in Roe v. Wade, Congress passed an amendment to the Public Health Service Act that permits individual health care providers and medical facilities to refuse to provide abortion and sterilization services if they have moral or ethical objections. By the end of the 1970s, nearly all states followed suit, passing similar laws regarding the provision of so-called "sensitive" services.
Few would argue that individual health care providers should be forced to provide certain services if they have a legitimate objection to those services, as long as arrangements can be made for individuals seeking the services to obtain them without undue burden or cost.
Nonetheless, individuals seeking certain services may face even greater obstacles: In some instances, entire health care plans are invoking a broad "conscience clause" in refusing to cover certain services in their packages. In the private sector, employers are doing the same by offering one or more health care plans that do not cover services to which the employers object, even if their employees do not share those objections.
In response, federal and state governments have become increasingly involved in ensuring a full range of services is covered by insurance in the public sector, and they are looking at the private sector as well. At the heart of the issue is the tension between the right of individuals to obtain coverage for their health care and the right of provid ers or plans to exempt themselves from offering that coverage for adequate cause, such as religious beliefs or moral convictions.
This tension was especially apparent in last fall’s debate in Congress about whether the health care plans offered by the federal government should be required to offer coverage for contraceptive services. In the end, equity won. Congress adopted a provision that requires health plans offered to federal employees to cover the full range of contraceptive services and supplies if those plans already offer coverage for other prescription drugs and devices. However, passage of the amendment was contingent on the addition of language that allowed plans that have objections based on bona fide "religious beliefs" (not moral) to opt out of covering contraceptive services.
In September 1998, the Health Care Financing Administration, which oversees the massive Medicaid program, published proposed regulations implementing another federal law that allows an entire Medicaid managed care plan, based on a religious or moral objection, to refuse to provide or reimburse for a service. This action was taken despite the fact that family planning is a covered service under Medicaid.
Moreover, providers would not even have to provide counseling about a given service if they had similar objections. The proposed rules would, however, require state Medicaid agencies to ensure access to all covered services. With more states moving their Medicaid clientele into managed care plans, these rules, which are expected to be finalized sometime this year, could have a major impact.
Meanwhile, many states also have considered this issue. So far, they generally have chosen to cover services and limit the religious exemption to employers rather than entire plans. Last year, Maryland was the only state to pass a law mandating contraceptive coverage; another was vetoed by the governor of California. A handful of other states have varying levels of regulatory requirements in place.
It may be some time before these issues can be sorted out, and the solutions likely will be varied. In Washington state, recent reports are that the Planned Parenthood affiliate and Catholic organizations have negotiated a religious exemption to a pending state bill in which an employee could purchase contraceptive coverage directly from her employer’s insurer if her employer claimed to have a religious objection to providing that service directly. Clearly, continued access to these services — whether an individual is publicly or privately insured — will require ongoing vigilance and a familiarity with health insurance never before required.
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