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National Law Journal - The Push to Protect Pro-Life Medical Providers

May 23, 2011

8 min read




by Tresa Baldas
Staff reporter

A wave of proposed legislation and numerous lawsuits are highlighting a trend by state governments to protect anti-abortion medical providers who refuse to offer services or drugs on religious or moral grounds.

Last year, 14 states introduced 37 bills that would allow pharmacists and other health care providers not only to opt out of abortion services, but to refuse to fill prescriptions for any drugs on the basis of personal or moral convictions.

In addition, nine states introduced broader bills that would permit the refusal of any medical procedure or drug for any reason.

The courts are also dealing with at least a dozen lawsuits that have been filed in recent years by medical professionals suing over the right to exercise their personal beliefs while on the job.

Meanwhile, many attorneys fear the government is on a slippery slope to allowing refusal for virtually any medical procedure, limiting access to practices and technology such as in-vitro fertilization, stem cell research and end-of-life practices.

"It was not so uncommon years ago to see that states had statutes that said you don't have to participate in certain procedures, but I think this is going way beyond that . . . .It's going beyond simply not having to participate in performing, but also not having to provide information about alternatives," said attorney Robyn Shapiro, who sits on the American Bar Association's Section of Individual Rights and Responsibilities. "I think that patients and doctors and their attorneys are going to be really concerned about this."

According to Shapiro, the recent legislation, known as "refusal" and "conscience" clauses, stirred some interest in the ABA, which formed a panel to investigate the proposed bills. As a member of that team, she helped draft a report that condemned the proposed statutes and will be presented to the ABA's House of Delegates at its upcoming ABA Mid-Year Meeting on Feb. 9-15 in Salt Lake City.

In recent years, Shapiro said she learned of several incidents where moral beliefs got in the way of medical services, including:

Cancer patients who sought information about harvesting an egg or a sperm, but providers refused to talk about the procedure.

Pregnant patients being denied sterilization procedures at religious hospitals.

Providers denying pain medications in end-of-life situations.

Rape victims being denied information about emergency contraception pills.

"The ABA opposes governmental actions that interfere with patients' abilities to receive from their health care providers, in a timely way, relevant information to make informed health care decisions," said Shapiro, a partner in Michael Best & Friedrich's Milwaukee office. "It's critical for us as lawyers to examine these legislative enactments as they come up to ensure that the doctrine of informed consent, which has both legal and ethical underpinnings, remains effective and strong."

A constitutional quandary

If attorney Francis Manion had his way, all health care professionals would be allowed to exercise their moral and religious beliefs at work. He said that while some patients might be inconvenienced, health care workers should be allowed to refuse to refer, counsel or even talk about topics they find morally wrong.

"The constitution says government shall not interfere with the freedom of religion. That right to religious freedom, even though the result may be inconvenient, overrides the mere convenience of somebody else who's looking for a certain medical procedure," Manion said. "There's nothing in the Constitution that says everybody has a right to any medical procedure they want, whenever they want, in the very convenient way that they want."

Manion works for the American Center for Law & Justice, a Washington-based public interest law firm that specializes in constitutional challenges.

In the last eight years, he's handled at least 30 cases involving health care professionals who claim to have been discriminated against for refusing services on religious grounds. He has litigated six such cases, including a case he settled last May involving a county health department employee in Illinois who was denied a promotion because she refused to translate into Spanish information on abortion options. Faith Moncivaiz v. DeKalb County Health Dept., No. 03-CV 50226 (N.D. Ill.).

Currently, Manion is representing an Illinois emergency medical technician who was fired for refusing to drive a woman to an abortion clinic.

According to Manion, the technician, Stephanie Adamson, said her Christian beliefs prevented her from transporting the woman, who had abdominal pain, for an elective abortion. She is suing the ambulance company, Superior Ambulance Co. of Elmhurst, Ill., claiming religious discrimination. Adamson v. Superior Ambulance Service, No. 04 C 3247 (N.D. Ill.).

Manion argues that the elective abortion was not an emergency situation.

"Why did she need to go by ambulance to an abortion clinic? If she was truly in a medical emergency, why wasn't she taken care of downstairs [in the hospital emergency room]? Manion said.

The ambulance company's lawyer, Summer Heil of Williams Montgomery and John in Chicago, was unavailable for comment.

Manion said that under Title VII of the Civil Rights Act of 1964, the federal statute that prohibits religious discrimination by private companies, the ambulance company was obligated to accommodate Adamson's beliefs.

Manion also noted that Adamson's case is being tried in Illinois, which has one of the broadest health care refusal statutes, also known as "conscience clauses," in the country. The Illinois law is not limited to abortion, and allows any health care professional to opt out of any procedure to which they have moral objections.

Mississippi passed a similar conscience clause last year, allowing "health care providers, including pharmacists or other pharmacy employees, counselors, social workers, health insures and health care facilities-to refuse to provide [any] medical services, including counseling and referral, on religious or ethical grounds."

Nine other states, including Wisconsin, Michigan and Texas, also introduced similar broad provisions, but they failed. And six bills have been introduced this session that address a pharmacist's refusal to fill a prescription in Indiana, Arizona, California, New Jersey, Tennessee and Texas.

Lawyers say pharmacists are currently at the forefront of the debate over conscious clauses.

According to a Planned Parenthood report, many pharmacists across the country have refused to fill prescriptions for moral reasons.

For example, last summer, a Dallas pharmacist refused to fill a mother's prescription for her son's Ritalin; a pharmacist in Denton, Texas, was fired after refusing to fill a rape victim's prescription for emergency contraception; and a pharmacist in North Richland Hills, Texas, refused to fill a prescription for birth control.

Currently in Wisconsin, a Catholic pharmacist is facing disciplinary measures for refusing to fill and transfer a woman's birth control prescription. In the Matter of the Disciplinary Proceedings Against Neil T. Noesen, Case No. LS-0310091-PHM

(Wis. Pharmacy Examining Bd. 2004).

Attorney Jack Zwieg, a prosecutor for the Wisconsin Department of Regulation and Licensing, said the pharmacist, Neil Noeson, endangered the patient by failing to refer the prescription elsewhere, thus putting her at risk for pregnancy.

Zwieg said he has recommended to a judge that Noeson pay a $1,000 fine for his actions, and be required to tell any future employer about his beliefs.

"He basically said he didn't feel he did anything wrong . . . and it sounded like he'd do it again," said Zwieg, who is concerned about medical professionals using their beliefs to deny services.

"Sometimes when you get into a certain profession you may have to cede some of your beliefs so that you provide the care those folks are expecting," Zwieg said. "My concern is with remote or rural areas, where this is the only pharmacy for miles, where in effect that person exercising their conscience will result in the patient not being allowed to get the care they're legally entitled to."

Noeson's lawyer, Krystal Williams-Oby, of the Kingdom Legal Services in Madison, Wis., declined to comment.

Adding to lawyers' fears is a 2004 federal law known as the Weldon amendment, which forbids any federal, state or local government from requiring any health care professional to perform, fund or refer for an abortion, and would bar federal funds from going to any government program that discriminates against such groups of individuals.

In recent weeks, two lawsuits were filed challenging the law: one by the National Family Planning and Reproductive Health Association (NFPRHA) in Washington, National Family Planning and Reproductive Health Association Inc. v. Ashcroft, No. 04-CV-02148 (HHK) (D.D.C.), and the other by the California Attorney General's Office, which filed its suit on Jan. 25 in federal court. California v. USA, No. C-05-003228 (N.D. Calif.).

The U.S. Department of Justice attorney who is representing the government in the NFPRHA suit, Sheila Lieber, was unavailable for comment.

Chaos at hospitals?

Lawyers fear that another danger posed by the Weldon amendment, along with state conscience clauses, is that chaos will erupt in hospitals and doctors' offices, where nobody will have control over decision-making matters.

"Now instead of having to follow a doctor's orders or get another job, they can say, 'Hell, I'll do whatever I want.' You can't have circumstances where a physician who is issuing orders is uncertain that the staff will carry them out," said attorney James Feldesman of Washington's Feldesman Tucker Leifer Fidell, who is handling the NFPRHA's suit against the Weldon amendment.

"If you can't be comfortable that 100% of what you're saying is told to your client or sent to your client or given to your client, you've got a mess on your hands," Feldesman said.

But Casey Mattox, litigation counsel at the Christian Legal Society in Annandale, Va., applauded the Weldon amendment for giving all medical professionals, not just doctors, the right to refuse to take part in or refer abortions.

"It allows them to know that they don't have to worry about losing their jobs because they refuse to do something that violates their religious beliefs," said Mattox, adding that abortion referrals are "more than just kind of directing someone to someone else. It requires the person having knowledge of who the best abortionist in the area is . . . .It would basically require forcing them to be participants in that process."

Professor Vernellia Randall, an attorney and former nurse who teaches health care law at the University of Dayton School of Law in Ohio, said her main concern with the Weldon amendment and conscience clauses is that they "abandon the patient."

"These refusal clauses are basically allowing doctors and facilities to abandon people. That is to say, 'We won't do it, and we won't tell you where you need to go to do it,' " Randall said. "It's always been the position that you don't have to treat a patient for whatever reason you want, but you can't abandon them. That person is already your patient. You have to make sure that they get the appropriate help that they came to see you for."

The abandonment claim is one that doctors and hospitals should guard against if they want to avoid being sued, said attorney Tom Packer, a medical health care and products liability defense lawyer who is a partner at Gordon & Rees of San Francisco.

For medical professionals who are passionate about exercising their moral beliefs at work, Packer suggests they follow some simple advice to avoid lawsuits: Get their beliefs in writing.

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