Protection of Conscience Project
Protection of Conscience Project
Service, not Servitude

Service, not Servitude

Re: Oregon Initiative Petition 40

Risks Eyed in Drive for Health Access

The Catholic Sentinel
(Portland, Oregon, USA)
9 February, 2006
Reproduced with permission

Ed Langlois

For more than 40 years, Catholic leaders have upheld the idea of health care as a basic right.

But a proposal possibly headed to the Oregon ballot leaves too much unsaid and could imperil the rights of providers who object to some procedures, say two Oregon medical groups.

Initiative Petition 40 would amend the state constitution, creating "access to effective and affordable health care as a fundamental right." The plan, which needs more than 100,000 signatures by July to become Measure 40 for the November ballot, does not offer detail, but orders the Legislature to craft a plan by July 2009.

As of the end of January, the drive had 14,000 signatures in hand. Chief petitioners are Rep. Mitch Greenlick, D-Portland, Sen. Alan Bates, D-Ashland and Sen. Ben Westlund, R-Tumalo.

Teams of Catholic physicians, as well as the Oregon Catholic Conference, say the petition's lack of upfront conscience protection pollutes the goal of expanded access.

Some doctors fear a future in which they could be charged with unconstitutional acts if they refuse to perform an abortion, will not participate in assisted suicide, or don't provide treatments using stem cells taken from embryos.

"Getting every person health care is a matter of human dignity," says Dr. Charles Bentz, an internist at Providence St. Vincent Medical Center and president of Physicians for Compassionate Care. "The problem is that there really needs to be a conscience clause. And there needs to be debate about what is legitimate medical practice. Medical providers need to have a choice about what they do and what they don't do. We also need to protect Catholic health care institutions in what they cover and don't cover."

Dr. Bentz argues that the conscience clause should be included at the start of the process, not later.

"Once you have a change in the constitution, it is very hard to come back and fix things," he says. "The time is early on. You can't nip this kind of thing in the bud too soon."

Calling the petition "an inherently and seriously flawed public policy statement despite its good intention," the Portland guild of the Catholic Medical Association has come out in opposition.

"Protecting the conscience rights of physicians and health care providers is essential to any proposed constitutional amendment that seeks to establish access to health care as a 'fundamental right,'" says a statement from the guild's president, Dr. Lynne Bissonnette. "The conscience rights of physicians and health care providers cannot be deferred for later inclusion in statutory legislation."

Catholic social teaching has held up health care as a basic right flowing from the dignity and sanctity of human life.

Last fall, Portland Archbishop John Vlazny called for universal coverage, noting that workers are getting less and less insurance. The archbishop pointed out that the U.S. Catholic bishops launched a campaign to extend coverage to the uninsured. The bishops said any plan should meet four criteria - respect for life, priority of the poor, universal access to comprehensive benefits and inclusion of all sectors in healthcare, including religious groups.

Church leaders fear some of the criteria don't register on the radar screens of those backing the initiative.

In recent sessions of the Oregon Legislature, Robert Castagna, executive director of the Oregon Catholic Conference, has sought conscience clauses in other bills declaring a state policy on access to health care. The Oregon Department of Human Services, supported by Senate passage of the legislation sought by the department, offered "most strenuous opposition," Castagna says. It turned out that the legislation died in the House, in large part because of the missing conscience clause.

"If the state really wants more Oregonians to have health care, there is no good reason to oppose a conscience clause," Castagna argues. "Unless, that is, the state wants to impose its values on health care providers."

The issue of health care right of conscience is being debated across the country. At least 18 states are considering new laws that protect health workers who want to maintain their ethical rights of conscience.

Similar debates are under way in the European Union, where one panel has advised that doctors should not always be allowed to refuse to do procedures that counter their beliefs. That European committee made its decision after extensive testimony from abortion-rights advocates.

In the Oregon petition, the phrase "fundamental right" caused the state's Attorney General to figuratively raise his eyebrows. "Fundamental rights are, relatively speaking, rare and few," he told state election officials in a July letter on the petition's ballot title.

The wording also concerns Castagna, an attorney. He says the rare and potent legal language could be in conflict with current rights.

"The initiative sets the fundamental right of access to health care against the fundamental right of conscience of providers," Castagna says. "Merely saying we will take care of this later is legally insufficient in the face of a constitutional amendment."

The plan should also say where the money will come from, Castagna says, fearing that other social services and education could suffer.

"A declaration of policy without the detail, without the plan, without the funding mechanism and without a conscience clause is a fundamentally flawed approach," he concludes.

The crux of the initiative petition is not unique to Oregon. The idea of a state constitutional right to healthcare has faltered in Illinois, Wisconsin, Vermont and North Carolina.

The Oregon petition is backed by local Democratic parties, several unions, the Oregon Nurses Association and the Oregon Psychological Association.

The Oregon Medical Association is not on the list of supporters. A spokesman says the organization rarely takes a position on an initiative before it qualifies for the ballot.

Providence Health System, which closely monitors proposed healthcare legislation, has not yet decided what stance to take if the initiative makes the ballot.

"We are always interested in measures that talk about increasing access," says Providence spokesman Gary Walker. "We have not decided to support, oppose or stay neutral on this issue."

Chief petitioners say the Legislature "is letting us down" by not taking up health care reform. They add that forcing lawmakers to craft a plan is a good use of the initiative system.

"It could be a process where everyone could have their say in it," Greenlick says. "And remember we have never done anything in this state that doesn't have a conscience clause."

Greenlick envisions a plan that would be able to snare more federal healthcare dollars. As it is, Oregon leaves more than a billion dollars on the table, in large part because it does not come up with matching dollars, particularly for children's health.

The lawmaker also mentions an increased cigarette tax as a good possibility for health revenue.

"We have a moral obligation to provide universal access to healthcare," says Greenlick. "To do this, it will have to be a matter of give and take."

Gilles Muñoz has watched the number of uninsured outgrow the capacity of safety-net clinics. Recent cuts by Congress threaten to make the problem worse, he says.

Director of the Virginia Garcia Memorial Health Centers serving Washington and Yamhill counties, Muñoz has expanded services to include about 25,000 patients. But that part of Oregon has an estimated 90,000 people without health coverage.

Forcing the Legislature to act via constitutional amendment will address a crisis that has long been avoided, Muñoz contends.

"It would be a mandate from the voters that this can't be ignored down in Salem," he says.

Muñoz is glad the initiative petition refrains from giving details. The Legislature should craft a plan only after hearings and public input, he says.

A member of St. Andrew Parish, he wants any state health initiative to have a conscience clause.

"I think there are going to be opportunities to deal with that in the process of creating the plan," Muñoz says. "Health providers who accept Medicare and Medicaid are not required to provide every service. That could be true of this, too."

In a prepared statement, Physicians for Compassionate Care said there is too much at stake to leave the conscience debate for later.

"In a constitutional amendment establishing access to health care as a 'fundamental right,' the ethical rights of conscience cannot be ignored or deferred for later statutory adoption," said the Portland-based group, formed shortly after Oregon voters approved assisted suicide.