[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
PROTECTING THE RIGHTS OF CONSCIENCE OF HEALTH CARE PROVIDERS AND A
PARENT'S RIGHT TO KNOW
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HEALTH
of the
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
JULY 11, 2002
__________
Serial No. 107-126
__________
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
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__________
------------------------------
COMMITTEE ON ENERGY AND COMMERCE
W.J. ``BILLY'' TAUZIN, Louisiana, Chairman
MICHAEL BILIRAKIS, Florida JOHN D. DINGELL, Michigan
JOE BARTON, Texas HENRY A. WAXMAN, California
FRED UPTON, Michigan EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida RALPH M. HALL, Texas
PAUL E. GILLMOR, Ohio RICK BOUCHER, Virginia
JAMES C. GREENWOOD, Pennsylvania EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia SHERROD BROWN, Ohio
RICHARD BURR, North Carolina BART GORDON, Tennessee
ED WHITFIELD, Kentucky PETER DEUTSCH, Florida
GREG GANSKE, Iowa BOBBY L. RUSH, Illinois
CHARLIE NORWOOD, Georgia ANNA G. ESHOO, California
BARBARA CUBIN, Wyoming BART STUPAK, Michigan
JOHN SHIMKUS, Illinois ELIOT L. ENGEL, New York
HEATHER WILSON, New Mexico TOM SAWYER, Ohio
JOHN B. SHADEGG, Arizona ALBERT R. WYNN, Maryland
CHARLES ``CHIP'' PICKERING, GENE GREEN, Texas
Mississippi KAREN McCARTHY, Missouri
VITO FOSSELLA, New York TED STRICKLAND, Ohio
ROY BLUNT, Missouri DIANA DeGETTE, Colorado
TOM DAVIS, Virginia THOMAS M. BARRETT, Wisconsin
ED BRYANT, Tennessee BILL LUTHER, Minnesota
ROBERT L. EHRLICH, Jr., Maryland LOIS CAPPS, California
STEVE BUYER, Indiana MICHAEL F. DOYLE, Pennsylvania
GEORGE RADANOVICH, California CHRISTOPHER JOHN, Louisiana
CHARLES F. BASS, New Hampshire JANE HARMAN, California
JOSEPH R. PITTS, Pennsylvania
MARY BONO, California
GREG WALDEN, Oregon
LEE TERRY, Nebraska
ERNIE FLETCHER, Kentucky
David V. Marventano, Staff Director
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Health
MICHAEL BILIRAKIS, Florida, Chairman
JOE BARTON, Texas SHERROD BROWN, Ohio
FRED UPTON, Michigan HENRY A. WAXMAN, California
JAMES C. GREENWOOD, Pennsylvania TED STRICKLAND, Ohio
NATHAN DEAL, Georgia THOMAS M. BARRETT, Wisconsin
RICHARD BURR, North Carolina LOIS CAPPS, California
ED WHITFIELD, Kentucky RALPH M. HALL, Texas
GREG GANSKE, Iowa EDOLPHUS TOWNS, New York
CHARLIE NORWOOD, Georgia FRANK PALLONE, Jr., New Jersey
Vice Chairman PETER DEUTSCH, Florida
BARBARA CUBIN, Wyoming ANNA G. ESHOO, California
HEATHER WILSON, New Mexico BART STUPAK, Michigan
JOHN B. SHADEGG, Arizona ELIOT L. ENGEL, New York
CHARLES ``CHIP'' PICKERING, ALBERT R. WYNN, Maryland
Mississippi GENE GREEN, Texas
ED BRYANT, Tennessee JOHN D. DINGELL, Michigan,
ROBERT L. EHRLICH, Jr., Maryland (Ex Officio)
STEVE BUYER, Indiana
JOSEPH R. PITTS, Pennsylvania
W.J. ``BILLY'' TAUZIN, Louisiana
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Heisler, John A., County Board, McHenry County, Illinois..... 53
Jenkins, Renee S., on behalf of the American Academy of
Pediatrics................................................. 48
Vosburgh, Karen.............................................. 10
Wardle, Lynn, Professor, J. Reuben Clark Law School, Brigham
Young University........................................... 22
Weiss, Catherine, Director, ACLU Reproductive Freedom Project 13
Wuchner, Addia, Northern Kentucky Independent Health District 43
Material submitted for the record by:
McHenry County Citizens for Choice, prepared statement of.... 71
(iii)
PROTECTING THE RIGHTS OF CONSCIENCE OF HEALTH CARE PROVIDERS AND A
PARENT'S RIGHT TO KNOW
----------
THURSDAY, JULY 11, 2002
House of Representatives,
Committee on Energy and Commerce,
Subcommittee on Health,
Washington, DC.
The subcommittee met, pursuant to notice, at 3 p.m., in
room 2322, Rayburn House Office Building, Hon. Michael
Bilirakis (chairman) presiding.
Members present: Representatives Bilirakis, Burr, Norwood,
Pitts, Tauzin (ex officio), Brown, Strickland, Capps, Towns,
Deutsch, and Wynn.
Staff present: Patrick Morrisey, deputy staff director;
Cheryl Jaeger, majority professional staff; Steven Tilton,
health policy coordinator; Eugenia Edwards, legislative clerk;
John Ford, minority counsel; and Jessica McNiece, minority
staff assistant.
Mr. Bilirakis. I call this hearing to order and first would
like to thank our witnesses for appearing before the
subcommittee today. This subcommittee certainly values your
expertise, and we are very grateful for your cooperation and
attendance. And as you good people fall in, please, let us try
to be orderly.
Today's hearing will touch on two subjects that I know many
members of the subcommittee, myself included, feel very
strongly about. Because of the vastly divergent views and
strong feelings invoked by the issues we will be discussing
today, I believe it is important to have a hearing which will
afford us the opportunity to listen to different viewpoints.
And I think this open dialog and expert testimony will aid all
members in making an informed decision about how best to
legislate in this area.
Our first panel will discuss an issue that we commonly
refer to as the conscience clause. In 1996, the Congress
passed, and President Clinton signed into law, provisions that
provide protections to health care professionals and a,
``health care entity'' from being forced to perform abortions
if they have moral or religious objections to the procedure.
However, court interpretations have called into question
whether these sections of law apply to hospitals that object to
offering elective abortions.
In 1998, a number of senators attempted to clarify the
record by stating that a health care entity was defined to
include physicians and other which does not mean that it
excludes hospitals. However, this clarification has not been
sufficient and it has come to my attention that we need to
amend the current statute to ensure that hospitals are covered
by the conscience clause. Consequently, I have introduced H.R.
4691, the Abortion Non-Discrimination Act, to guarantee that
all health care entities are afforded the important protections
provided by the original law, as I believe was intended.
Our second panel will discuss the issue of whether parents
have the right to know if their children receive contraceptive
devices or drugs from title X family planning clinics. And,
again, this is an issue where most of us have had some
experience in the raising of our children. And I think it is
safe to say that most parents have strong feelings about
wanting to know what is going on with their children's health,
and as a parent, I certainly can identify with this notion.
Title X regulations specifically prohibit health care
providers from informing parents of their child's actions to
seek contraceptives. I am interested to hear from our witnesses
today whether title X rules allow for appropriate flexibility
and deference to the health care professionals that provide
care in these clinics. Can a doctor use his or her best
judgment about notifying a child's parents about health
concerns when providing care to a minor? Question.
Again, I know these are difficult issues, and I look
forward to hearing from our witnesses so we can make informed
decisions about how best to proceed, and I now recognize my
good friend from Ohio, Mr. Brown, for his opening statement.
Mr. Brown.
Mr. Brown. Thank you, Mr. Chairman. This afternoon we will
discuss the merits of a proposal to permit health care entities
to refuse to comply with Federal, State and local laws
pertaining to abortion services. We will discuss parental
consent requirement for access to reproductive health services.
I want to thank Ms. Weiss for joining us, Dr. Jenkins and the
other distinguished panelists.
The majority has labeled the first issue for debate a
clarification of existing law. They will argue the legislation
clarifies a provision of law known as the Coats Amendment,
adopted, as the chairman said, in 1996 omnibus appropriations
bill. The Coats Amendment allowed post-graduate physician
training programs that chose not to provide or refer for
training and abortion procedures to still qualify for Federal
funding. This so-called clarification bill would dramatically,
dramatically expand this narrow law.
Let me be clear, this is not simply a technical amendment.
It is a sweeping expansion to the law that would override
Federal and State and local laws. This bill expands this scope
of the law beyond graduate medical programs and permits any
health care entity, including insurance companies and hospitals
and HMOs to refuse to perform, to refuse to provide coverage
of, to pay for or refer for abortions.
In the interest of time, I want to mention just one example
of how this bill is egregious and irresponsible, putting a
political agenda, in my mind, above access to critical and
human health care. The Federal Hyde Amendment ensures Medicaid
patients access to abortion services in cases of rape, incest
or where the pregnancy endangers the woman's life. The
chairman's bill would override these standards of care. The
bill would give the HMOs the legal standing to refuse to adhere
to the Hyde Amendment. That is a major policy change with
tremendous ethical implications.
The chairman's bill also blurs the line between medicine
and personal preference. How does this differ from a health
care facility or an insurance company denying a critical
procedure based on an ethnic bias or a racial bias? And I want
to point out that once again the same Members of Congress who
claim to be staunch champions of State and local sovereignty,
who want to block grant Medicaid to gives States more
flexibility, who want to privatize Medicare because it is a
``one-size-fits-all,'' program, who constantly demonize the
one-size-fits-all mentality of the Federal Government are now
trying to impose a one-size-fits-all refusal clause at the
State and the local level. Once you get into the realm of
religion and ethics and morals, my conservative colleagues have
no problem using the heavy hand of the Federal Government to
stifle different perspectives at the State and local level.
Second issue we will discuss this afternoon is parental
consent. title X, the only Federal program dedicated
exclusively to funding family planning and reproductive health
care services has helped to prevent unintended pregnancies,
reduce abortions, lower the rate of STDs, including HIV, and
improve women's health overall. A study 4 years ago reported
that teen pregnancy rates fell 17 percent sine the rate peaked
in 1990, and 75 percent of this decline reflects improved
contraceptive use among sexually active teens, 25 percent due
to reduced sexual activity. That is a very impressive track
record that an overwhelming majority of Americans support.
What we are considering today would undermine the inherent
value of a title X clinic, confidential access to family
planning services, and require teens to get the consent of
their parents before receiving contraceptives. While family
planning clinics encourage minors to involve their parents in
health care decisions, an admiral thing, as Chairman Bilirakis
said, Congress cannot and should not write laws that will
achieve communication between and adolescent and her or his
parents where it simply doesn't exist.
The American Academy of Pediatrics, the American College of
Obstetricians and Gynecologists, the American Nurses
Association, the American Public Health Association, the
American Academy of Family Physicians, among many other
respected members of the medical community, all oppose, all
those groups that are so involved in this kind of medical care
oppose mandatory parental consent or notification requirements
for teens receiving services at a title X family planning
clinic for obvious reasons, that children and parents, young
teens and parents don't always communicate as well as we would
like.
This committee should respect the medical community's
opinion as well as the success, the success that family
planning clinics have achieved in reducing unintended teen
pregnancies. Reducing unintended pregnancies is, after all, the
key goal, it is a bipartisan goal, it should remain a
bipartisan goal. I thank the chairman.
Mr. Bilirakis. The Chair thanks the gentleman. The Chair
recognizes the chairman of the full committee, Mr. Tauzin, for
an opening statement.
Chairman Tauzin. Thank you, Mr. Chairman. I want to thank
you for holding this hearing today. I am pleased the committee
is addressing two important ethical questions that impact
health care in our country. Our committee spends a great deal
of time exploring ways that we can improve access to health
care for America's patients. But an equally important goal has
always been that we ensure that ethical guidelines for our
health care system are always maintained at the highest
possible level. And this is true whether it involves issues
pertaining to the rights of conscience of health providers or
issues dealing with cloning or stem cells, which this committee
wrestled with not too long ago. We still maintain a
responsibility to ensure the ethics and morals that are indeed
the foundation of much of our society are not trampled upon
because of Federal policies. And today we address two of those
timely issues.
The first question we ask is should the Federal Government
require health care providers to participate in procedures that
violate their moral and religious beliefs? In my mind, the
answer to that question is a clear no, although admittedly
there are some differences of opinion here. Second, is the
Federal Government, through some of our health care programs,
undermining the critical role that parents play in guaranteeing
the well being and the health of their children? That answer
requires some analysis. More and more we are learning about
instances where parents are currently being shut out of
critical health care decisions regarding their children. I
believe that is an unacceptable practice.
On the first question, it is important to note that for
over 30 years State and Federal Governments have passed
conscience clause statutes intended to protect health care
providers from being coerced into performing procedures that
violate their moral and religiously held beliefs. I supported
these laws in the past, and I hope we can all continue to do so
in the future. A health care provider should never be forced to
abandoned his or her moral values and religious beliefs and be
required to perform a particular procedure.
I would like to express my appreciation for the work of
Chairman Bilirakis in raising awareness on this important
issue. The chairman has offered the Abortion Non-Discrimination
Act of this year, H.R. 4691, to clarify the intent of existing
law so that it clearly prohibits the discrimination of health
care entities who refuse to perform abortions. I strongly
support this bill and encourage my colleagues to co-sponsor the
bill if they have not already done so.
On the second question we are addressing today, I am
frankly very pleased we are beginning to take a closer look at
whether or not parents should be denied information about
whether a minor that they are legally responsible for is
permitted access to contraceptives. And while there are
substantial differences of opinion regarding the value and
effectiveness of title X programs, current title X regulations
do not permit health care providers to use their best judgment
or even discuss sensitive health care issues with parents
without the express consent of the minor. I think this turns
things on its head.
We learned, for example, at our welfare reform hearings
last April, that when we were growing up, in the sixties, there
were really two sexually transmitted diseases of great concern
to be worried about. We were told today there are 25, and they
include such diseases affecting young men and women in our
society, very often women, as HPV, herpes and chlamydia. These
are viral diseases; they cannot be cured, only managed. And
when a title X clinic provides contraceptives and condoms to
teens without the parent's consent or notification and there is
no evidence that condoms reduce the sexual transmission of many
of these infections, the health of these children, in many
cases young women of our country, is put at risk without the
parents even knowing that is occurring. That doesn't make sense
to me.
And when title X clinics allow a child to begin taking a
prescription drug or to have access to contraceptives, that
encourage a child to make a choice to engage in sexual
activities, that put them at risk for diseases that can't be
cured, in some cases are non-detectable, they don't even know
they have them until they find out they have lost their ability
to have children because the disease has destroyed the
reproductive capacities. Or they have now incurred a disease
that maybe a precursor to cancer because their parents didn't
have the chance to tell them maybe this isn't such a good idea
for you, maybe you ought to try abstinence, because the parents
didn't know because the title X clinic couldn't talk to the
parent about these kind of important decisions that parents and
children should be making in their lives.
Something has gone terribly wrong. If we only had these two
diseases in the 1960's to worry about today, that would be one
thing. Think about what young people are facing today, and
think about the role that parents are being denied in caring
for their own children and worrying about them, helping them
make the right decisions. And I think you get a sense of why
this is an important hearing today.
So Mr. Bilirakis, I want to thank you for conducting it,
and I want to thank the witnesses who are going to come share
their thoughts with us today. I hope we learn a little bit
today, and maybe we will quell politics with the issue and
begin thinking about what really is best for the children of
our country. Thank you, Mr. Chairman.
Mr. Bilirakis. Thank you, Mr. Chairman, for your statement.
The gentlelady from California, Ms. Capps.
Ms. Capps. Thank you, Mr. Chairman. And I appreciate your
holding this hearing, and I appreciate our expert witnesses for
being with us today.
Today, I am speaking and listening, not just as an elected
representative but as a mother and a grandmother, a public
health nurse and the former director of the Santa Barbara
School District Teenage Pregnancy and Parenting Program, a
program which provided, and does still provide, child care and
development, child development services for school-age parents.
I have first-hand real world experience with young men and
women struggling with the difficult subject of sex. I have
dealt with teenagers trying to cope with the ramifications of
bad decisions, and I have worked with young women as they
strive to make life-altering decisions. And I have seen the
terrible results when we turn our back and deny them help. So
today's subjects are of great personal interest to me, and I
have significant concerns about them.
First of all, I can tell you from my experience that
parental consent requirements for title X services will result
in higher teenage pregnancy rates, period. Like most of my
colleagues, I think it is, when at all possible, the best
option for a teen considering sexual activity to speak with and
consult with his or her parents. Parental involvement in our
children's lives is crucial especially for issues like these.
And for anyone who works with young people, the interest in
bridging that relationship between child and parent is
paramount, but not all young people have that option for a
variety of reasons. And requiring parental notification and
consent will cause many teenagers to avoid seeking help from
health clinics. If you have ever sat with someone who is the
victim of incest, you will know what this subject means.
These teens have unprotected sex, and they will struggle on
their own to deal with the results. Many will seek unsafe
abortions or will not get access to critical pre-natal care. No
one wants that for our young people. Our best hope is to have a
frank conversation with them and help them to understand the
gravity of their choices. Parents need to have that role
whenever possible. And then, as a last resort, we need to make
sure that they have access to all needed services if their
families fail them or are not there, literally not there for
them.
Our other topic, the so-called conscience clause, is
equally difficult. For decades, women have had to fight to get
access to the reproductive health services they uniquely need.
Programs like title X and Medicaid have risen up around their
efforts, and I consider myself to be a religious person. I am
very respectful, as respectful as I know how to be, of the
deep-seeded beliefs and feelings that many Americans have on
the subject of reproductive health. I grant them their right to
have positions and feelings that may differ from mine, but I do
not accept that anyone should have the authority to compel
others to assume these beliefs as well.
Under current law, an individual who has a religious or
moral objection to providing a service can refuse to offer it,
but the law recognizes certain differences between an
individual and an institution. Institutions do not have the
same rights, nor should they. Health care facilities exist to
provide services. It should be extremely rare when such a
facility can deny anyone access to care. Even so, there are
only minimal obligations on hospitals and other facilities.
Under title X, they only have to tell someone what their
choices are and where they can go to receive these services.
And under Medicaid, hospitals and clinics will only be
obligated to provide an abortion in cases of rape, incest or
when the life of the mother is in danger. Enacting broader
conscience clause for institutions will result in leaving women
without the services that they have a constitutional right to.
So, Mr. Chairman, I think the current law gives sufficient
deference to moral objections, and that we need to protect
access to critically important reproductive health care. And I
yield back the balance of my time.
Mr. Bilirakis. The Chair thanks the gentlelady. Mr. Pitts
for an opening statement.
Mr. Pitts. Thank you, Mr. Chairman. First, thank you for
holding this important hearing today, and thank the witnesses
for appearing today.
Both the rights of conscience for health providers and a
parent's right to know about prescription drugs for their minor
children are a matter of basic ethics in health care. Mr.
Chairman, I learned last year of the need for a comprehensive
anti-discrimination protection for health care organizations
that choose not to provide abortions. Shockingly, some of our
fine private hospitals have recently threatened and even
forced, compelled to provide abortions, a procedure to which
they are opposed to providing.
Currently, Federal law does provide conscience protection
for individuals and providers who choose not to perform or
refer for abortions. However, recent court cases have
demonstrated that this law needs to be clarified to protect
hospitals and health care organizations from abortion-related
discrimination.
Ms. Vosburgh, a witness before us today, represents Valley
Hospital, located in Palmer, Alaska. Valley Hospital is a
private, non-sectarian hospital that decided to have a policy
against performing abortions. Valley Hospital had a right to
have this policy since it, as I said, is a private hospital.
Unfortunately, Valley Hospital was ordered to perform abortions
against its will.
Mr. Chairman, this is wrong. Abortion is elective surgery,
it is not prenatal care, it is not basic health care, as some
of our friends would like us to believe. Private hospitals
should be able to decide what types of elective surgery they
wish to offer. If they don't want to provide abortions, they
shouldn't have to. For every one hospital that does not provide
abortion, there are scores of hospitals that do provide them. I
wonder what other elective surgeries we will begin forcing our
hospitals to provide next.
We are not talking about discrimination here, which would
be offering a service to some patients and not others. We are
talking about a private hospital board making a decision not to
offer one type of elective surgery and making that decision
apply to everyone who walks in the door, regardless of race,
income, whatever.
Mr. Chairman, I am proud to be a co-sponsor of your
legislation, the Abortion Non-Discrimination Act. This
legislation strengthens existing law by saying that health care
providers may not be required to provide abortions. It is
common sense, I think it is a technical change. The authors of
the 1996 law admit that they intended for hospitals and health
care providers to be included in the definition of health care
entity. However, unfortunately, the courts have misconstrued
this and thus the need for further clarification.
The second issue before us today is even more disturbing.
Mr. Chairman, in the State of Pennsylvania, a minor needs
written parental or guardian consent to have his or her ears
pierced, to get a driver's learning permit, to get married, to
receive aspirin in school, to attend a field trip, to get a
tattoo, to participate in athletic activity, to be absent from
school, to ride a bus other than his own, the list goes on. We
do not allow minors to attend R-rated movies, purchase tobacco
products, consume alcohol. However, Federal regulations allow a
minor to get contraceptives, including injected drugs, like
Depo-Provera, and surgical implants, like Norplant, in health
care clinics receiving title X funds without parental consent.
In fact, it is against the law for medical staff to inform
parents that their child is receiving prescription
contraceptives.
Mr. Chairman, it is deplorable that while a 14-year-old
girl is required to have parental consent to get an aspirin in
school or have her ears pierced, she can receive prescription
contraceptive drugs and devices without the consent or
knowledge of her parents. I am sure you agree with me that
parents have a right to know what the government is doing to
their children. Further, under current law, in most States, a
minor receiving care in a physician's office must receive
parental consent before receiving care. However, if that same
minor were to enter a title X clinic, she could receive
prescription contraceptives without parental consent or
notification. Again, it is mandated under Federal regulations.
The testimony we will hear today from Mr. Heisler will show
the danger of this regulation. It is unconscionable that our
government regulations prevented a 13-year-old parents--girl's
parents from knowing that their daughter had been driven to a
clinic by her teacher to receive contraceptives and then raped
over a period of 18 months this went on. Another example, in
1998, a 16-year-old in Walton County, Georgia, unbeknownst to
her parents, went to receive a pelvic exam, an injection of the
contraceptive drug, Depo-Provera, in a taxpayer-funded clinic,
and as the girl was about to receive the injection she casually
mentioned to the nurse that she had a heart murmur. The nurse
told the girl she would need a doctor's note, so the clinic
would be immune from a malpractice claim, and the family's
doctor subsequently notified the mother that the chemical
contraception, if it had been administered, there was a great
probability that her child would have gone into cardiac arrest
and possibly have died because of her heart condition.
These horrific examples could have been prevented if our
bill was passed. We don't expect the government to watch over
every single teen out there to whom is given birth control.
That is a parent's responsibility. However, by keeping them out
of the loop, were are, in effect, removing parents from the
equation. And so thank you, thank you to all the witnesses for
taking time to come and testify. I look forward to hearing
their testimony.
Mr. Bilirakis. The Chair thanks the gentleman. Mr. Deutsch,
for an opening statement.
Mr. Deutsch. Thank you, Mr. Chairman. Just listening to
opening statements, it is almost as if it is a tale of two
cities or a tale of two countries. My good friend and colleague
talked about an America which I wish it existed. I wish
everyone in America could go to private physicians or go to
clinics that are not affected by H.R. 4691, but that is not the
case. This type of legislation, in fact, the facts are that it
does discriminate. It does discriminate disproportionately of
low-income women, people who don't have a choice, people in
rural areas. And that would be the effect. I can turn the
questions on its head that these are title X funded clinics
that they don't have to participate. If they feel so
objectionable of the requirements that go along with the
funding, then they can choose not to participate; that is their
choice.
It is also--I mean, obviously, we have two separate parts
of the hearing. It is also interesting, and the chairman well
knows this coming from Florida, as I do, that the Florida
Supreme Court has actually found a Florida constitutional right
of non-notification. And it is interesting. I mean this is not
a radical court by any stretch of the imagination. And it is
also--again, I don't know what other States provide State
constitutional protection that has been interpreted to provide
this. But it is the follow-up of really this whole issue of a
tale of two countries.
I don't ever like to personalize statements as a member,
but I have a daughter that I hope she never gets pregnant
outside of marriage, but if she did, I would hope she would
have the relationship with her mom and me to talk to us. But
there are many children in America, unfortunately, and we are
talking the tens of thousands, who unfortunately don't have
those relationships with their parents and situations of abuse,
potentially incest, potentially all sorts of other issues that
exist. And there is a reason for the distinction that my
colleague mentioned between going on a bus without permission
and being able to receive contraception or for that matter
abortion. There is a very real reason, and the experience of a
16-year-old girl who might be far more experienced than maybe
anyone in this room in this area defies the conditions that
still exist in America, in many places, under many times and
many circumstances.
So I welcome this hearing, I welcome the testimony from
different people, and I urge my colleagues who have not seen
both sides of America to visit both sides of America. Thank
you.
Mr. Bilirakis. I thank the gentleman. Mr. Wynn, for an
opening statement.
Mr. Wynn. Thank you, Mr. Chairman. I appreciate your
calling this hearing on a very, very important issue facing us
today. I have very mixed feelings, but I think in listening to
the testimony I will be focusing on, and I hope as a committee
we focus on the welfare of the child from the standpoint of the
child's health. In an era of AIDS and as well as rampant teen
pregnancy, it seems to me that young people do have the need to
have unfettered access to information about contraception as
well as contraceptive devices. Having said that, I also
acknowledge that there is a parental role, I just think that
that parental role should not come into play once you reach the
point of making these crucial decisions.
I also would be interested, however, in hearing from people
comment on the question of their interaction of contraceptives
with other drugs that the child may be taking and how we can
again look at the child's best--protect the child's welfare in
those situations where there may be an adverse reaction if full
information is not disclosed to the person making the
contraceptive information or devices available.
So there are a lot of complex issues before the committee.
I also look forward to hearing from the witnesses, but I do
believe we have to take the child's physical health, keep that
in the forefront of this discussion. Again, I thank you for
calling this hearing and look forward to the testimony. Thank
you.
Mr. Bilirakis. And the Chair thanks the gentleman. And we
will go on to the panel now, but before we do I would like to
say that Congressman Akin is here at his own time because he
has an interest in this subject, and he is more than welcome to
be sitting in during our deliberations.
The first panel consists of Ms. Karen Vosburgh, from Palmer
Alaska, a very beautiful community, I have been to it; Ms.
Catherine Weiss, director of ACLU Reproductive Freedom Project
out of New York City; and Professor Lynn Wardle, J. Reuben
Clark Law School, Brigham Young University, Provo, Utah.
Welcome. Your submitted testimony is a part of the record,
and we would hope you would complement it. We will set the
clock at 5 minutes and hopefully we will all do our best to
adhere to that time limit. Ms. Vosburgh, please start off.
Please, the mike, yes.
STATEMENTS OF KAREN VOSBURGH; CATHERINE WEISS, DIRECTOR, ACLU
REPRODUCTIVE FREEDOM PROJECT; AND LYNN WARDLE, PROFESSOR, J.
REUBEN CLARK LAW SCHOOL, BRIGHAM YOUNG UNIVERSITY
Ms. Vosburgh. Good afternoon, Mr. Chairman, and thank you
for bringing this up to the forefront. I do thank you for that.
And also other members of the committee. Thank you for
providing me this opportunity to testify and to express my
support for protecting health care providers from forced
involvement in abortion.
I serve as a director of the Association Board of Valley
Hospital, which is a nonprofit, nonsectarian community-based
hospital. This hospital lies in an amazingly beautiful valley,
as you said, Mr. Chairman. It is surrounded on three sides by
these incredible mountains and beautiful rivers. I mean it is
just a very pristine area. It is Palmer, Alaska, and it is
located about 50 miles east of Anchorage. There is also another
town, Wasilla, that is 10 miles from Palmer. And these two
towns and the outlying areas make up a place we call the
Valley. There is about 50,000 people there.
It is a place of faith. There are 70 churches in this
valley, and we are a very God-based community, and we believe
that abortion--we know that abortion is killing a human being.
Valley Hospital is truly a community hospital in that it is
governed by the members of the community. Membership in the
hospital is open to all residents of our community without
regard to citizenship, race, sex or religious preference. The
members elect the association board on which I serve. The
association board is responsible for raising funds, acquiring
land, property and equipment for the hospital and for selecting
the members of the hospital's operating board. This board sets
the policy of the hospital. And because the members of the
operating board are ultimately selected from our community, the
board truly represents the community. Among the operating
board's current members, for example, are a pastor, a realtor,
an attorney, a teacher and a physician.
The community both serves and is served by the hospital.
The mission of the hospital is to enhance the health of those
we serve, guided by the values of honoring the dignity of all
people, representing the interests of the community and
providing the highest level of care within the bounds of
ethics.
Our small town has an OB/GYN who performs elective
abortions. She uses Valley Hospital for her later-term, second
trimester elective abortions. For the most part, our community
wants abortion to stop at Valley Hospital. So, in the early
1990's, the members elected people to the association board who
believe in respect for human life and who hold the philosophy
that hospitals are for healing and not for killing. The
association board selected the operating board, which passed a
resolution reflecting this policy. The resolution ended
abortion at Valley Hospital except in the cases of rape, incest
and danger to the life of the mother, which is exactly the same
policy that the Federal Government has had in Medicaid and its
other health programs for many years. In fact, every year, our
operating board continues to update this policy. This is the
latest one, and it states that, ``A policy has been adopted
that elective abortions shall not be performed at Valley
Hospital. The exceptions to this policy include documentation
by one or more physicians that the fetus has a condition that
is incompatible with life, a life-threatening condition exists
for the patient or the pregnancy is a result of rape or
incest.''
When the abortionist was told she could no longer perform
abortions at Valley Hospital, she was overheard complaining
that abortions were a good portion of her income. She sued. The
trial judge, Judge Dana Fabe, ruled in her favor, stating that
because Valley Hospital received some Federal and State money
from Medicaid and Medicare, that it was a quasi-public entity
and therefore has to provide abortions. The judge's reasoning
was strange, to say the least. How can our receipt of Federal
funds be used to forbid us to have the same abortion policy
that the Federal Government requires in all its own health
facilities?
I believe, however, that this particular Judge Fabe's
opinion was colored by her personal views on abortion. In 1993,
she made the statement in a newspaper there that, ``If a high
school student in this State has a fundamental right to choose
his or her hairstyle, an Alaskan woman must certainly have a
fundamental right to choose whether or not to terminate a
pregnancy.'' That is her reasoning.
Of course, Valley Hospital challenged this decision, and it
went before the Alaska Supreme Court. The five-member court is
one of a handful of State supreme courts to rule that State
funds must be used for elective abortions despite the contrary
decision of the State legislature. One member, Justice Bryner--
I was there when he said this, and I just about fell on the
floor--he said during oral arguments for the State funding
issue, he declared that pregnancy is a disease. It was no
surprise that this court upheld Judge Fabe's original decision.
The Alaska Supreme Court held that Valley Hospital was quasi-
public because of its receipt of public monies.
In addition, the court struck down a State law protecting
hospitals that refuse to participate in abortions, denying the
right of our board to exercise its rights of moral conscience.
The court even suggested that it would not respect the
religious beliefs of those who decline involvement in abortion,
saying, ``recognizing such a policy as compelling could violate
the Establishment Clause of the First Amendment.'' And you will
find that in Valley Hospital Association v. Mat-Su Coalition
for Choice.
In response, the legislature sought to reverse the decision
by constitutional amendment, which requires a two-thirds vote
of our legislators. Sadly, the amendment failed to garner the
two-thirds majority by just one vote, and I am sure many of you
understand that here.
Mr. Bilirakis. Please summarize, Ms. Vosburgh.
Ms. Vosburgh. Will do. This court decision potentially
places all hospitals in our State in a Catch-22 situation. If
you are a non-religious hospital, you have no First Amendment
claim of religious freedom, so you must provide abortions. If
you are a religious hospital with a free exercise claim,
respect for your right of conscience may be seen as showing
favoritism to religion, so you may still have to provide
abortions.
I like this quote, this is from Bernard Nathanson who is a
former abortionist. He said, ``It is clear that permissive
abortion is purposeful destruction of what is undeniably human
life. It is an impermissible act of deadly violence.'' For
those of us who share this view, that abortion is a form of
violence, not a form of health care, being required to provide
and support it is a grave injustice.
I ask for myself, my community and for any other hospital
or health care provider that does not want to be forced to be
involved in killing innocent human life, please pass
Congressman Bilirakis' bill, the Abortion Non-Discrimination
Act. We, too, have a right to choose--to choose not to be
involved in destroying innocent human life. Thank you.
[The prepared statement of Karen Vosburgh follows:]
Prepared Statement of Karen Vosburgh
Good afternoon, Mr. Chairman and members of the committee. Thank
you for providing me this opportunity to testify and express my support
for protecting health care providers from forced involvement in
abortion.
I serve as a director of the association board of Valley Hospital,
a nonprofit nonsectarian community-based hospital. The hospital lies in
an amazingly beautifully valley, surrounded on three sides by majestic
mountains, with rivers and streams of crystalline blue in Palmer,
Alaska. Palmer is located about 50 miles east of Anchorage. There's
another town, Wasilla, that's 10 miles from Palmer. These two towns and
the outlying areas are known as ``the valley.''
Valley Hospital is truly a community hospital in that it is
governed by the members of the community. Membership in the hospital is
open to all residents of our community without regard to citizenship,
race, sex or religious preference. The members elect the association
board on which I serve. The association board is responsible for
raising funds, acquiring land, property and equipment for the hospital
and for selecting the members of the hospital's operating board. This
board sets the policy of the hospital. And because the members of the
operating board are ultimately selected from our community, the board
truly represents the community. Among the operating board's current
members, for example, are a pastor, a realtor, an attorney, a teacher,
and a physician.
The community both serves and is served by the hospital. The
mission of the hospital is ``to enhance the health of those we serve''
guided by the values of honoring the dignity of all people,
representing the interests of the community, and providing the highest
level of care within the bounds of ethics.
Our small town has an OB/GYN who performs elective abortions. She
uses Valley Hospital for her later-term, second trimester abortions.
For the most part, our community wants abortion to stop at Valley
Hospital. So, in the early 1990's the members elected people to the
association board who believe in respect for human life and who hold
the philosophy that hospitals are for healing, and not killing. The
association board selected the operating board, which passed a
resolution reflecting this policy. The resolution ended abortion at
Valley Hospital except in the cases of rape, incest and danger to the
life of the mother--exactly the same policy the federal government has
had in Medicaid and its other health programs for many years.
When the abortionist was told she could no longer perform abortions
at Valley Hospital, she was overheard complaining that abortions were a
good portion of her income. She sued. The trial judge, Judge Dana Fabe,
ruled in her favor, stating that because Valley Hospital received some
federal and state money, it was a quasi-public entity, and therefore
has to provide abortions. The judge's reasoning was strange, to say the
least. How can our receipt of federal funds be used to forbid us to
have the same abortion policy that the federal government requires in
all its own health facilities? I believe, however, that Judge Fabe's
opinion was colored by her personal views on abortion. In 1993 she made
the statement that ``if a high school student in this state has a
fundamental right to choose his or her hairstyle, an Alaskan woman must
certainly have a fundamental right to choose whether or not to
terminate a pregnancy.''
Of course, Valley Hospital challenged the decision, and it went
before the Alaska Supreme Court. This five member court is one of a
handful of state supreme courts to rule that state funds must be used
for elective abortions despite the contrary decision of the state
legislature. One member, Justice Bryner, declared that ``pregnancy is a
disease'' during oral arguments on the funding issue. It was no
surprise that the court upheld Judge Fabe's original decision. The
Alaska Supreme Court held that Valley Hospital was ``quasi-public''
because of its receipt of public monies. In addition, the court struck
down a state law protecting hospitals that refuse to participate in
abortions, denying the right of our board to exercise its rights of
moral conscience. The court even suggested that it would not respect
the religious beliefs of those who decline involvement in abortion,
saying, ``recognizing such a policy as `compelling' could violate the
Establishment Clause of the First Amendment.'' Valley Hospital Ass'n.
v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997).
In response, the legislature sought to reverse the decision by
constitutional amendment, which requires a two-thirds vote of our
legislators. Sadly, the amendment failed to garner that two-thirds
majority by just one vote.
This court decision potentially places all hospitals in our state
in a ``Catch-22'' situation. If you are a non-religious hospital you
have no First Amendment claim of religious freedom, so you must provide
abortions. If you are a religious hospital with a ``free exercise''
claim, respect for your right of conscience may be seen as showing
favoritism to religion, so you may still have to provide abortions.
At a time when he was not a member of any religion, former
abortionist Bernard Nathanson once said: ``It is clear that permissive
abortion is purposeful destruction of what is undeniably human life. It
is an impermissible act of deadly violence.'' For those of us who share
this view--that abortion is a form of violence, not a form of health
care--being required to provide and support it is a grave injustice.
I ask for myself and my community, and for any other hospital or
health care provider that does not want to be forced to be involved in
killing innocent human life. Please pass Congressman Bilirakis's bill,
the Abortion Non-Discrimination Act (H.R. 4691). We, too, have a right
to choose--a right to choose not to be involved in destroying life.
Thank you for considering my views.
Mr. Bilirakis. Thank you, Ms. Vosburgh.
Ms. Weiss, please proceed. Make sure that mike is on.
STATEMENT OF CATHERINE WEISS
Ms. Weiss. Mr. Chairman and members of the subcommittee,
good afternoon and thank you for inviting me to testify today.
I am here, as you know, on behalf of the American Civil
Liberties Union. Because of its dual long-term commitments to
religious liberty and reproductive freedom, the ACLU has a
profound interest in the ongoing debate about religious
exemptions in the reproductive health context. I am going to
begin by telling you about the case that brought the ACLU into
this debate, then I will outline the framework we use for
analyzing these exemptions. And I will end with a brief
discussion of H.R. 4691.
First the story. In 1994, I got a call from a very
distraught doctor in Nebraska. He told me that a 19-year-old
woman had been admitted through the emergency room of the
hospital where he practiced. She had a blood clot in her lung.
Tests revealed that she was 10 weeks pregnant. The clotting
disorder was a rare complication of the pregnancy. Her treating
physicians told her that she had two alternatives. She could
stay in the hospital for the remaining 6\1/2\ months of her
pregnancy, taking medications and undergoing surgery to reduce
her risk of death or she could have first trimester abortion.
She wanted to go home to her toddler so she decided to have an
abortion. Four doctors certified that it was a life-saving
procedure for her. On the morning surgery was scheduled,
however, the hospital's lawyer appeared in the operating room
brandishing a State law that said that no hospital could be
required to permit an abortion on its premises. The procedure
was canceled. Ten days of dangerous delay followed. Although
moving the patient greatly increased her medical risks, she was
ultimately transferred 20 miles by ambulance to the office of
her physician. He performed the abortion safely. Although his
patient had survived the unconscionable risks to which she had
been suggested, the doctor wanted to know whether what the
hospital had done was legal. That is one of the questions
presented here today.
I move now to the framework the ACLU has developed for
analyzing religious exemptions. This framework is meant to
balance protection for religious liberty with protection for
other critical personal rights. We have identified two main
factors. First, would refusal harm the health or other critical
personal interests of people who do not share the beliefs that
motivate the refusal? The more such burdens fall on third
parties, the less acceptable any claimed right to refuse.
Second, is the objector sectarian institution engaged in
religious practices or is instead an entity, whether
religiously affiliated or not, operating in a public, secular
setting? The more public and secular the setting, the less
acceptable an institution's claimed right to refuse.
H.R. 4691 fails this test. The burdens imposed by the bill
would fall primarily on patients of all faiths and no faith
seeking health care in public and secular settings. Consider,
for example, the hypothetical case of a low-income woman in
Washington State who has just been raped. The police take her
to a local emergency room in a large, urban catholic hospital.
State law in Washington requires hospitals to offer all rape
victims emergency contraception so that they can prevent a
pregnancy resulting from the assault. The hospital, however,
believes that emergency contraception is an abortifacient, so
relying on H.R. 4691 the hospital refuses to provide or even
inform the patient about emergency contraception. She leaves
not knowing that this drug exists.
Three weeks later, the woman's pregnancy test comes back
positive. She is devastated and decides to have an abortion.
She calls her Medicaid managed care organization. As you know,
State and Federal law entitle rape victims to Medicaid coverage
for abortion. Relying on H.R. 4691, however, the managed care
organization tells the patient that it does not provide
abortions and refuses to give her any further information on
the subject. She assumes that her abortion isn't covered and
starts the race against time of trying to raise the money on
her own as the pregnancy advances.
This account provides just one example of how H.R. 4691
could allow hospitals, health plans and other institutions to
shirk critical legal obligations to patients, even patients in
publicly funded health care programs. But surely health care
institutions that employ the general public and serve the
general public and even receive public funds should comply with
public health laws. The ACLU urges the subcommittee to reject
this dangerous bill. Thank you.
[The prepared statement of Catherine Weiss follows:]
Prepared Statement of Catherine Weiss, Director, American Civil
Liberties Union, Reproductive Freedom Project
Chairman Bilirakis, Ranking Member Brown, and members of the
Subcommittee: My name is Catherine Weiss and I am the Director of the
American Civil Liberties Union's Reproductive Freedom Project. I am
pleased to testify today on behalf of the ACLU about refusal clauses in
the reproductive health context. The ACLU is a nationwide, nonpartisan,
nonprofit organization of approximately 300,000 members dedicated to
protecting the principles of freedom and equality set forth in the
Constitution and in our nation's civil rights laws.
Today, I will explain the practical impact of refusal clauses
(sometimes also called religious exemptions or ``conscience clauses'')
that permit entities and individuals to refuse to provide or cover
health services to which they object on religious or moral grounds. I
will provide a brief overview of federal refusal clauses. And I will
offer an analytic framework for evaluating refusal clauses that
balances protection for religious liberty with protection for the
public health. Finally, I will explain that the public overwhelmingly
rejects the principles that underlie overly broad refusal clauses, and
I will urge you to oppose H.R. 4691 because it would impose
unacceptable burdens on women of all faiths and no faith seeking
reproductive health care in public, secular settings.
The ACLU has a long, proud history of vigorously defending
religious liberty. In Congress and in the courts, we have supported
legislation providing stronger protection for religious exercise--even
against neutral, generally applicable laws. For nearly a decade, the
ACLU fought to preserve or restore the highest level of constitutional
protection for claims of religious exercise. We were founding members
of the coalition that supported the Religious Freedom Restoration Act
in 1993, and we were instrumental in urging Congress to enact the
Religious Land Use and Institutionalized Persons Act of 2000. We have
also represented persons challenging burdens on the exercise of their
religious beliefs. For example, we have sued to protect the right of
Jewish students to wear a Star of David pendant at school; we have sued
to defend the right of conservative Christian activists to broadcast on
public access television; and we have filed a brief in support of two
women who were fired for refusing to work at a Greyhound racetrack on
Christmas day. We even offered to back the Rev. Jerry Falwell in his
2001 challenge to Virginia laws restricting ownership of church
property.
We have been equally vigilant in our advocacy of reproductive
rights. The ACLU fought long and hard to persuade Congress to pass the
Freedom of Access to Clinic Entrances Act to protect reproductive
health clinics, patients, and professionals from deadly violence. We
are currently key supporters of the Equity in Prescription Insurance
and Contraceptive Coverage Act to ensure more widespread access to
contraception for working women. We have participated in nearly every
critical Supreme Court case protecting reproductive freedom, from Roe
v. Wade to Planned Parenthood v. Casey to Stenberg v. Carhart. This
history makes the ACLU well-positioned to assist the Subcommittee in
its consideration of refusal clauses, which, as is illustrated below,
can have a dramatic effect on the health of women.
a case in point
In the Spring of 1994, a nineteen-year-old Nebraska woman, Sophie
Smith,1 was admitted to the emergency room at a religiously
affiliated hospital with a blood clot in her lung. Tests revealed that
Smith was approximately ten weeks pregnant, and that the clotting
problem resulted from a rare and life-threatening condition exacerbated
by the pregnancy. The hospital immediately put Smith on intravenous
blood-thinners to eliminate the existing blood clot and to help prevent
the formation of more clots that could kill Smith instantly if they
lodged in her lungs, heart, or brain.
Smith's doctors told her that she had two alternatives. She could
stay in the hospital on intravenous blood-thinners for the remaining
six-and-a-half months of her pregnancy. She would also need a procedure
in which doctors would insert an umbrella-like device into one of her
veins designed to catch blood clots before they reached a vital organ.
Or she could have a first-trimester abortion, switch to oral blood
thinners, and be released from the hospital. Smith decided to have the
abortion. She wanted to go home to care for her two-year-old child.
On the morning Smith was scheduled to have the abortion, the
hospital lawyer appeared in the operating room. He announced that the
hospital would not permit an abortion on its premises--even though four
doctors had certified that an abortion was necessary to save Smith's
life. The lawyer was armed with a state refusal law that stated, ``No
hospital, clinic, institution, or other facility shall be . . .
required to allow the performance of an abortion therein.''
2 The procedure was canceled and ten days of dangerous delay
followed.
Smith wanted to be transferred to a facility that would perform the
abortion, but moving her increased the risk that a blood clot would
kill her. Because the blood-thinners she was taking made her prone to
excessive bleeding, Smith's doctors felt that she should be treated in
a hospital. But the hospital refused to reconsider its decision not to
allow the abortion on its premises. Notwithstanding the risks to her
health, Smith was ultimately transferred by ambulance to her doctor's
office. He performed the abortion and sent her back to the hospital.
Smith was lucky in the end. She survived the risks she faced when
this hospital refused to treat her. But the risk itself was
unacceptable.
a brief overview of federal refusal clauses
Refusal clauses pertaining to certain reproductive health services
swept the nation in the years following the Supreme Court's 1973
decision legalizing abortion in Roe v. Wade.3 Congress
started the trend that same year when it passed legislation (sponsored
by Senator Frank Church and known as the ``Church Amendment'') in
reaction to a 1972 court order that had required a Catholic hospital to
allow a sterilization procedure to be performed on its
premises.4 The Church Amendment established that an
individual's or entity's receipt of federal funds under certain public
health programs is not a basis for requiring recipients with moral or
religious objections to perform or assist in sterilization or abortion
procedures, or to make facilities or personnel available for the
performance of such procedures.5 The legislation also
prohibits certain federally funded institutions from discriminating in
employment, or in the extension of staff or other privileges, against
any health care professional because the professional refuses to
perform or assist in an abortion or sterilization procedure based on a
religious or moral objection; because the professional does perform or
assist in abortion or sterilization procedures in a separate setting;
or because of the professional's religious or moral beliefs concerning
these procedures.6
In 1996, Congress adopted the Coats Amendment.7 The
amendment prohibits the government from ``discriminating'' against
medical residency programs or other entities that lose accreditation
because they fail to provide or require training in abortion services.
The amendment was passed after the Accreditation Council for Graduate
Medical Education adopted a professional standard requiring residency
programs in obstetrics and gynecology to provide abortion training.
Under the standard applicable at that time, residency programs or
physicians with religious or moral objections could opt out of the
required abortion training, although programs remained responsible for
insuring that willing residents received abortion training at another
institution. The Coats Amendment established that the government could
not ``discriminate'' against a medical residency program solely on the
basis of the program's refusal to train new doctors in abortion
practice or to refer them elsewhere for such training, even when a
residency program lost its accreditation because of its failure to
offer training.
In 1997, Congress adopted new statutory requirements for the
Medicaid program that, among other things, mandated that states inform
patients about how to obtain covered services--including family
planning services--that their Medicaid managed care organization did
not provide.8 Congress made clear, however, that the new
provisions did not require a Medicaid managed care organization to
provide, reimburse, or cover any counseling or referral service to
which the organization objects on moral or religious
grounds.9
In 1998, Congress passed a hard-fought provision that required
health plans participating in the Federal Employees Health Benefits
Program (``FEHBP'')--which provides health insurance for federal
employees--to cover prescription contraceptive drugs and
devices.10 Federal employees can generally choose from a
wide variety of participating plans. Congress explicitly exempted from
the requirement five religiously affiliated health plans that were then
FEHBP participants. It also created an exemption for ``any existing or
future plan, if the plan objects to such coverage on the basis of
religious beliefs.'' (In the years since, no additional plan has
requested a religious exemption.) And, in 1999, the House voted against
an amendment offered by Representative Chris Smith that would have
broadened the exemption to plans that object to contraceptive coverage
on the basis of ``moral beliefs.''
striking the right balance
The framework we propose below for analyzing refusal clauses
balances protection for the public health in general, reproductive
health in particular, patient autonomy, and gender equality with
protection for individual religious belief and institutional religious
worship. We reject the imposition of religious doctrines on those who
do not share them, especially at the expense of the public health. At
the same time, we seek the maximum possible accommodation of an
individual's religious or conscientious objections, so long as
patients' rights are not compromised as a result. We also seek to
insulate pervasively sectarian institutions from having to comply with
laws that interfere with their religious practices.
To strike the proper balance, policymakers and advocates must
consider each proposed refusal clause carefully, tailoring it to its
context. Concrete examples may be clearer than general principles:
every rape survivor ought to be offered emergency contraception to
protect herself from getting pregnant as a result of the assault, no
matter where she is treated; an administrative assistant working at a
Catholic university should not have to pay out-of-pocket for birth
control pills because her employer believes contraception is a sin; but
a church should not have to purchase contraceptive coverage for its
ministers and other clerics; and a doctor, nurse, or pharmacist who
cannot in good conscience participate in abortions or contraceptive
services should be allowed to opt out, so long as the patient is
ensured safe, timely, and financially feasible alternative access to
treatment. The factors we identify for evaluating refusal clauses
should lead to these kinds of fair results.
a framework for analyzing refusal clauses
Constitutional principles neither require nor forbid most refusal
clauses.11 Nevertheless, legal principles are useful in
constructing a framework for analyzing when an exemption is called for
and what it should look like. Based in part on our study of the case
law, the ACLU has identified two measures for evaluating refusal
clauses. We consider first whether granting an exemption would impose
burdens on people who do not share and should not bear the brunt of the
objector's religious beliefs. Exemptions that impose little or no
burden on others are more acceptable; exemptions that impose
substantial burdens are less so. By ``burdens,'' we mean to include
obstacles to health care and other critical personal interests, but we
do not mean to include the mere exposure of third parties to religious
practices or the tax or other financial burdens that may result from
permitting certain exemptions. We consider next whether the exemption
protects the religious practices of pervasively sectarian institutions
or instead protects institutions operating in the public sphere.
Exemptions that insulate core religious functions are more acceptable
than those that spill over into the secular world.
These measures are not part of any currently accepted legal test.
But they reflect concerns that have been an undercurrent in many
relevant cases without necessarily determining the outcome of those
cases. Although each measure has independent importance, there is some
overlap between the two: the imposition of particular religious beliefs
on those who do not share them is less likely within a pervasively
sectarian institution performing religious functions than in a more
secular setting.
Avoiding Burdens on Others
In the reproductive health context, the risk of imposition on those
who do not share the objector's beliefs is especially great when an
employer, hospital, health plan, pharmacy, or other corporate entity
seeks an exemption. The refusal of such institutions to abide by
reproductive health mandates directly affects employees, patients,
enrollees, and customers of diverse backgrounds and faiths. The law
should not permit an institution's religious strictures to interfere
with the public's access to reproductive health care.
The courts have repeatedly shown themselves wary of the imposition
of an institution's religious beliefs on others. In Catholic Charities
v. Superior Court,12 for example, the California Court of
Appeal explained at length why the state was justified in adopting a
narrow refusal clause that permitted only pervasively sectarian
organizations--such as churches, religious orders, and some parochial
schools--to refuse to include contraceptive coverage in health plans
for their employees. A broader exemption, granting a right to refuse to
Catholic Charities and other church-affiliated organizations that
employ diverse workforces, would have meant ``imposing the employers'
religious beliefs on employees who did not share those beliefs.'' An
expansion of the refusal clause would also have ``undermine[ed] the
anti-discrimination and public welfare goals of the prescription
contraceptive coverage statutes.'' 13
Another court expressed similar concerns in St. Agnes Hospital v.
Riddick.14 There, a board that oversees graduate medical
education had withdrawn accreditation from a Catholic hospital's ob/gyn
residency program because of several deficiencies, including the
hospital's refusal to provide or otherwise allow its medical residents
to obtain clinical training in contraception, sterilization, or
abortion procedures. The hospital claimed that the withdrawal of its
accreditation amounted to religious discrimination. The court rejected
this claim, concluding that the state had more than sufficient reason
to insist on comprehensive medical education despite the hospital's
religious objection. These reasons included the public's
``overwhelmingly compelling interest in . . . competently trained
physicians'' and the importance of preventing the hospital from
``impos[ing] its Catholic philosophy on its residents, many of whom are
not Catholic.'' 15
The threat of imposition on others is significantly reduced when
the law protects individual--as opposed to institutional--decisions
about whether to provide certain health services. The federal Church
Amendment contains antidiscrimination provisions that shield the
conscientious decisions of doctors, nurses, and other practitioners.
These provisions serve as a useful model in that they protect both
those who refuse to participate in and those who provide abortion or
sterilization procedures.16
Laws that protect individual religious refusals offer important
protections for health care professionals but may compromise the rights
of patients unless adequate safeguards are included. There should be
limits even to an individual health care provider's right to refuse.
For example, whatever their religious or moral scruples, health
professionals should give complete and accurate information and make
appropriate referrals. Both legal and ethical principles of informed
consent require doctors to tell patients about all treatment options,
``including those [the doctor] does not provide or favor, so long as
they are supported by respectable medical opinion.'' Doctors who refuse
to treat should also ``refer the patient to a physician who does offer
or favor the alternative treatment.'' 17 Nor can a health
care provider's religious or moral convictions ever justify endangering
a patient's safety. Courts have been appropriately intolerant of lapses
in medical professionalism, even when they are religiously motivated.
For example, a federal appeals court held that a New Jersey hospital
was not liable for religious discrimination in firing a labor and
delivery nurse who twice refused on religious grounds to scrub for
emergency obstetrical procedures. She refused, although in both cases
the pregnant women's lives were threatened, and the hospital claimed
her refusal in the second case dangerously delayed treatment for a
hemorrhaging patient.18
Insulating the Religious Functions of Pervasively Sectarian
Institutions
The second measure we use to evaluate refusal clauses focuses on
the nature of the institution and activity exempted. Churches, temples,
mosques, seminaries, and other pervasively sectarian institutions
engaged in religious practices ought generally to be free of the
requirements of laws repugnant to their beliefs. Among health care
institutions, privately funded Christian Science sanatoria may
exemplify those that should qualify for a religious exemption. Such
sanatoria are staffed by Christian Science healers, and they attend
only to those seeking to be healed exclusively through prayer.
When, however, religiously affiliated organizations move into
secular pursuits--such as providing medical care or social services to
the public or running a business--they should no longer be insulated
from secular laws that apply to these secular pursuits. In the public
world, they should play by public rules. The vast majority of health
care institutions--including those with religious affiliations--serve
the general public. They employ a diverse workforce. And they depend on
government funds. A recent study found that Medicare and Medicaid
accounted for 46% of total revenues to religiously affiliated hospitals
in California in 1998, while unrestricted contributions, including
charitable donations from church members, accounted for only .0015% (or
$15 in every $10,000) of total revenues.19 These
institutions ought to abide by the same standards of care and
reproductive health mandates as apply to other health care
institutions.
Again, in deciding Free Exercise claims, the courts have recognized
the importance of distinguishing the religious from the secular
context. In refusing to allow employment discrimination claims by
ministers and other clerics against their churches, for example, the
courts have concluded that the state should not intrude into matters of
church governance and administration because a church's autonomy in
these areas is central to its religious mission.20 The
courts have also noted that the employees of churches and comparable
religious institutions may be assumed, ``based on the religious nature
of the employment, [to] agree with or willingly defer their personal
choices to the religious tenets espoused by their employer.''
21 On the other hand, the courts have acknowledged the
appropriateness of preventing entities engaged in secular endeavors
from foisting their religious principles on members of the general
public.22
where the public stands
The ACLU recently conducted public opinion research--including
focus groups and a nationwide telephone survey--on religious objections
to providing reproductive health services. This qualitative and
quantitative research shows that Americans overwhelmingly oppose laws
that protect religious objectors at the expense of the patient's rights
and the public health.
The public opposes refusal clauses that threaten access to health
care.
89% oppose ``allowing insurance companies to refuse to pay for
medical services they object to on religious grounds.''
88% oppose ``allowing pharmacies to refuse to fill
prescriptions they object to on religious grounds.''
86% oppose ``allowing employers to refuse to provide their
employees with health insurance coverage for medical services
the employer objects to on religious grounds.''
76% oppose ``allowing [hospitals] to refuse to provide medical
services they object to on religious grounds.''
The public's insistence on access reflects its view that religious
refusals jeopardize women's health and lives. Seven in ten Americans
are concerned, for example, that if ``religiously affiliated hospitals
are allowed to limit access to medical services, the health and lives
of many women will be threatened.''
The public believes that individuals must be allowed to make health
care decisions for themselves. While proponents of refusal clauses
often cast the issue as one in which religious liberty is pitted
against reproductive rights, the public sees this dichotomy as false.
72% agree with the following statement: ``Religious liberty is
not threatened by requiring hospitals to provide basic medical
care. We are not talking about limiting a person's ability to
worship, but access to basic health care.''
Even when the issue is presented as a choice between the religious
interests of institutions and the health care decisions of individuals,
however, the public backs the patient.
79% believe that it is ``more important to respect the
personal conscience of individuals making difficult health care
decisions'' than to ``respect the conscience of a religious
hospital.''
69% believe that it is ``more important to protect the
reproductive freedom of women'' than to ``protect the religious
freedom of religious hospitals.''
Moreover, the public believes that the government's first
responsibility is to protect the public health.
72% are more concerned that the government hold ``all
hospitals--whether religiously affiliated or not--to the same
standards'' than they are about keeping ``the government from
forcing religious hospitals to violate their beliefs.''
83% believe that ``if a hospital receives government funds, it
should be required to provide basic, legal medical services,
regardless of the hospital's religious objections.''
Overall, our public opinion research shows that Americans are
deeply troubled by the idea that religious interests could come between
them and their health care needs.
h.r. 4691--a broad and dangerous refusal clause
Based on the framework outlined above, the ACLU opposes H.R. 4691,
a bill sponsored by Chairman Michael Bilirakis (R-FL), Majority Leader
Dick Armey (R-TX), and Representative Joseph Pitts (R-PA). H.R. 4691
would allow a broad range of health care entities to refuse to comply
with a wide array of federal, state, and local requirements to provide
reproductive health services. As noted above, the United States
Constitution does not require any exemption--let alone such a broad
exemption--from compliance with public health laws. Moreover, H.R. 4691
fails the test set forth in the ACLU's framework because its burdens
would fall primarily on those who do not share the beliefs that
motivate the refusal and because it protects institutions engaged in
the public and secular provision of health care.
H.R. 4691 would build upon the Coats Amendment, an existing federal
refusal clause described above. If enacted, the newly expanded language
would provide (amendments in italics):
The Federal Government, and any State or local government that
receives Federal financial assistance, may not subject any
health care entity to discrimination on the basis that--
(1) the entity refuses to undergo training in the
performance of induced abortions, to require or provide
such training, to perform, provide coverage of, or pay
for induced abortions, or to provide referrals for such
training or such abortions;
. . .
(c) Definitions:
For purposes of this section:
. . .
(2) The term ``health care entity'' includes an
individual physician or other health professional, a
postgraduate physician training program, a participant
in a program of training in the health professions, 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.
Practical Effects of the Proposal
The main effect of H.R. 4691 is to prohibit a governmental entity
from ``discriminating''--that is, treating a health care entity
differently--on the basis of the entity's refusal to perform, refer,
train, cover, or pay for abortions. But what constitutes
``discrimination'' would no doubt be the subject of debate and
potential litigation.
H.R. 4691 could have the following effects, among others:
It would compromise the ability of Title X clients to obtain
information critical to their health. Title X, which provides
federal funds for contraceptive services for low-income
individuals, requires that grantees provide a referral to a
qualified abortion provider upon request as part of non-
directive options counseling for pregnant women. H.R. 4691
would prohibit the federal government from enforcing this
regulation if it were deemed ``discriminatory'' to deny Title X
grants to providers that refuse to make abortion referrals. The
bill could thus undermine federal standards and compromise the
health of low-income pregnant women by denying them critical
information.
It would interfere with the delivery of abortion services to
poor women in dire emergencies. H.R. 4691 would impede a
state's ability to comply with the federal Hyde Amendment,
which mandates coverage of abortions for women in the Medicaid
program in cases of rape, incest, or where the pregnancy
endangers a woman's life. Requiring Medicaid managed care
organizations that participate in the program to provide such
coverage could constitute ``discrimination'' against those that
refuse to provide or refer patients elsewhere for these
services.
It would interfere with states' ability to enforce their own
laws on abortion. H.R. 4691 could prevent those states that
cover medically necessary abortions beyond those mandated by
the Hyde Amendment (whether as a result of state constitutional
rulings or by virtue of state laws) from effectuating that
coverage by contracting only with Medicaid managed care
organizations that agree to provide or refer for abortion
services. Currently, more than fifteen states require such
coverage. H.R. 4691 would interfere with these states' ability
to enforce their own laws and constitutional decisions and to
manage and ensure delivery of mandated services within their
own Medicaid programs.
It would disrupt the enforcement of state health care
regulations. H.R. 4691 would thwart the enforcement of state
and local laws that require entities certified or licensed by
the state to address the full range of health care needs in the
communities they serve. A state might be prevented, for
example, from denying a ``certificate of need'' (a state-issued
document that is similar to a permit and that is often required
before two hospitals can merge) to a newly merged hospital that
refused to provide even lifesaving abortions and thus left
pregnant women in the community without help in medical
emergencies. (Mergers between a religiously affiliated hospital
and a secular hospital often raise this issue because some
religiously affiliated hospitals insist that the newly merged
entity apply religious doctrine in the provision of health
services.)
It could immunize a health care entity's refusal to provide
emergency contraception, even to victims of rape. Because it
does not define the term ``abortion,'' H.R. 4691 could permit
health care entities to refuse to provide emergency
contraception, even to victims of rape. Although emergency
contraception is merely a high dose of ordinary birth control
pills and does not interrupt an established pregnancy, some
religiously affiliated providers define emergency contraception
as an ``abortifacient.'' Health care entities that subscribe to
this view could use this bill to attempt to shield themselves
from repercussions for refusing to comply with state laws that
require hospitals to provide emergency contraception (or
referrals for emergency contraception) to rape survivors who
present in their emergency rooms.
conclusion
Even interpreting it conservatively, H.R. 4691 is a potentially
sweeping federal exemption from current legal and regulatory
requirements that govern access to health services. In fact, it amounts
to a broad non-compliance permit for religiously affiliated entities
that serve the general public and receive public funds, but
nevertheless want exemptions from the general laws that govern other
health care entities. The ACLU therefore opposes this dangerous measure
and respectfully urges this Subcommittee to reject it.
ENDNOTES
1 Ms. Smith's name has been changed to protect her
identity.
2 Neb. Rev. Stat. Sec. 28-237.
3 410 U.S. 113 (1973).
4 See Taylor v. St. Vincent's Hosp., 523 F.2d 75, 76
(9th Cir. 1975).
5 42 U.S.C. Sec. 300a-7.
6 Id. Sec. 300a-7(c), (d), (e).
7 42 U.S.C. Sec. 238n.
8 42 U.S.C. Sec. 1396u-2(a)(5)(D).
9 42 U.S.C. Sec. 1396u-2(b)(3).
10 Omnibus Consolidated and Emergency Supplemental
Appropriations Act, Pub. L. No. 105-277, Sec. 656, 112 Stat. 2681
(1998).
11 Employment Div. v. Smith, 494 U.S. 872 (1990)
(holding that the Free Exercise Clause does not entitle religious
objectors to exemptions from neutral, generally applicable laws); Corp.
of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) (holding that the
Establishment Clause does not prohibit an exemption from Title VII of
the Civil Rights Act that permits religious organizations to
discriminate on the basis of religion in employment decisions.).
12 109 Cal. Rptr. 2d 176 (Ct. App.), petition for review
granted, 31 P.3d 1271 (Cal. 2001).
13 Id. at 183.
14 748 F. Supp. 319 (D. Md. 1990).
15 Id. at 330. The Accreditation Council for Graduate
Medical Education (ACGME) has since made clear that ob/gyn residency
programs must offer clinical training in contraception and
sterilization. In addition, the current standards require clinical
training in abortion, unless a residency program has a ``religious,
moral, or legal restriction,'' in which case the program must
nevertheless (1) ensure that residents receive training in how to
manage abortion complications; (2) permit residents to receive abortion
training elsewhere; and (3) publicize the restriction to all residency
applicants. Program Requirements for Residency Education in Obstetrics
& Gynecology Sec. V.A.2.d., e. (ACGME, effective Sept. 1999), http://
www.acgme.org/req/220pr999.asp. As discussed above, however, the Coats
Amendment requires that residency programs be treated as accredited--
for licensing, funding, and other governmental purposes--
notwithstanding any refusal to offer, refer for, or arrange for
abortion training. 42 U.S.C. Sec. 238n.
16 42 U.S.C. Sec. 300a-7(c), (d), (e).
17 President's Commission for the Study of Ethical
Problems in Medicine and Biomedical and Behavioral Research, Making
Health Care Decisions: A Report on the Ethical and Legal Implications
of Informed Consent in the Patient-Practitioner Relationship 76 (1982);
see also Principles of Medical Ethics of the American Medical
Association, Policy E-8.08 Informed Consent (issued 1981), available at
http:// www.ama-assn.org (using policy finder); American College of
Obstetricians & Gynecologists Committee Opinion No. 108, Ethical
Dimensions of Informed Consent 7-8 (1992).
18 Shelton v. Univ. of Med. & Dentistry, 223 F.3d 220
(3d Cir. 2000).
19 Lois Uttley & Ronnie Pawelko, MergerWatch Project,
Educ. Fund of Family Planning Advocates of N.Y.S., No Strings Attached:
Public Funding of Religiously-Sponsored Hospitals in the United States
15 (2002).
20 See, e.g., Gellington v. Christian Methodist
Episcopal Church, 203 F.3d 1299 (11th Cir. 2000).
21 Catholic Charities, 109 Cal. Rptr. 2d at 189.
22 Riddick, 748 F. Supp. at 330; Catholic Charities, 109
Cal. Rptr. 2d at 189.
Mr. Bilirakis. Mr. Wardle, please proceed, sir.
Thank you, Ms. Weiss.
STATEMENT OF LYNN WARDLE
Mr. Wardle. Thank you. Mr. Chairman and distinguished
members of this subcommittee, I am honored to be invited to
present testimony today. I have studied and written about
abortion for over two decades, and I have seen the
transformation of the debate. Initially, advocates of
permissive abortion desired to give women the private choice to
select abortion. They asserted that they did not intend to
force anyone to do anything, but they just sought to repeal
laws that prohibited one option available to them that they
thought should be available. However, once that goal was
achieved by judicial decree, it was not long before they
demanded that public funds be available to pay for those
abortions and that public hospitals should be forced to perform
abortions. Fortunately, although the ACLU and other
organizations instigated and provoked years of litigation to
try to force, through interpretation of the Constitution, that
public facilities be made available, the Supreme Court rejected
those claims.
But they didn't stop there. They have now attempted to
enact regulation for accrediting medical schools and teaching
hospitals. Where was the ACLU when that conscience debate was
fought? Those who claim to stand for the rights of conscience
ought to have a record that supports that claim.
When the ACGME regulation was proposed and the battle was
fought for the Coats Amendment, Congress had to step forward to
pass an amendment to prevent coercion to protect the rights of
conscience of medical students and doctors and hospitals.
Recently, there has been a series of attempts to compel
hospitals and health care groups and other health care
organizations to provide abortion services or to give up
licenses or be denied the permission to continue to provide
medical health services. Also there have been attempts to force
health care insurers and private employers to provide abortion
coverage and of abortion payment. This isn't free choice, this
isn't privacy, this isn't equality, this is bald coercion.
The Supreme Court decisions on abortion funding are very
clear, that the Constitution does not require, in spite of the
efforts of those who claim to be speaking for choice, to force
others to engage in practices that are against their
conscience. Let me give you a few examples, incidents that have
occurred, just the tip of the iceberg. There was a 1980's study
of nurses in America that revealed that 5 percent of those
studied, which extrapolated would be 50,000 nurses in America,
perceived that their assignment or promotion opportunities had
been limited by their moral and religious beliefs about
abortion. They identified over 100 incidents in which that had
occurred just in the sample. We can give incidents of--these
are from the Protection of Conscience web site. Nurses refused
employment, forced to resign, workers fired for refusing
payment for illegal abortion, worker fired for--hospital aide
fired for refusing to clean abortion instruments, K-Mart
pharmacist fired for refusing to dispense abortifacient,
student pressured to participate in abortion, hospital forces
nurses to participate in genetic terminations, more D.C.
medics, referring to District of Columbia, say they were forced
to have abortions, and now of course Mayor Bloomberg's new
policy in New York requiring, mandating all city hospitals to
provide abortion training. This is the media mogul who once
reportedly told an employee who said she was pregnant, ``Kill
it, kill it.''
Rights of conscience are so fundamental to our country I
just want to--the policy decision that is at issue here was
made over 30 years ago when the Church Amendment was enacted.
It was enacted to protect a hospital with a religious
affiliation from having to perform abortions. It passed
handily, but it has had to be amended in light of repeated new
tactics designed to coerce the denial of and to bar the
exercise of rights of conscience.
One of the speakers earlier referred to this as a major
expansion, this proposed bill. I would respectfully disagree.
This is not a major expansion but it is an effort to close a
loophole that is undergoing--seen a major expansion in tactics
to circumvent the policy and purpose of the law. When we talk
about respect for rights of religion and religious conscience,
we have to put action behind our words. We can't be like
Cromwell. Wasn't it Cromwell who said he would respect the
religious liberty, but if anyone tried to celebrate the mass,
he would burn them at the stake? We see echoes of that in some
of the statements by people who are trying to force others to
perform abortions against their conscience: ``Oh, I respect
your right of conscience, but you had better perform an
abortion or if not, you will be fired or you will lose your
license, you will lose your certificate of authority.''
It is ironic that this bill comes at this time before this
committee, because I believe this committee has been recently
testimony about scandals that resulted when conscience was
anesthetized in business practices. And we have seen a call by
our President for a revival and renewal of conscience. And yet
at the same time, witnesses are asking this committee to not
pass a law to protect the rights of conscience in the health
care field? I think that it is extremely ironic and would be a
tragedy.
Mr. Bilirakis. Please summarize, sir.
Mr. Wardle. I urge this committee to enact the Abortion
Non-Discrimination Act. Thank you.
[The prepared statement of Lynn Wardle follows:]
Prepared Statement of Lynn D. Wardle,1 J. Reuben Clark Law
School, Brigham Young University
---------------------------------------------------------------------------
\1\ Professor of Law, J. Reuben Clark Law School. I engaged in
scholarly research and writing about these issues for over two decades,
and teach a law school Seminar on Biomedical Ethics and Law. See Lynn
D. Wardle, The Quandary of Pro-life Free Speech: A Lesson from the
Abolitionists, 62 Albany L. Rev. 853-966 (1999); Lynn D. Wardle,
Protecting the Rights of Conscience of Health Care Providers, 14 J.
Legal Medicine 177-230 (1993); Lynn D. Wardle, A Matter of Conscience:
Legal Protection for the Rights of Conscience of Health Care Providers,
2 Cambridge Q of Health Care Ethics 529-42 (1993). I express
appreciation to my research assistant, William J. Perkins, especially
for updating the summary of state laws protecting conscience, and to
Maureen Kramlich, for their assistance in providing material that
helped in preparing this Statement. Of course, the opinions expressed
herein are my own professional opinions and I do not speak for or
represent any other person or organization.
---------------------------------------------------------------------------
i. introduction
Today a growing number of health care practices, procedures, and
medications present serious moral concerns for many health care
providers. Recent medical and pharmacological developments increasingly
put health care entities at the vortex of some of society's most
controversial moral dilemmas. These include issues relating to
providing, performing, participating in or facilitating as abortion
(both by traditional surgical methods and also by chemical methods such
as the ``Morning After Pill''), human cloning, embryonic stem cell
techniques, genetic engineering including sex preselection, DNA
screening for genetic disorders, sterilization, contraception, sex-
change, euthanasia, assisted suicide, and capital punishment by lethal
injection, to name just a few medically-related practices with profound
moral implications. Increasingly there is pressure upon health care
providers, both individuals and organizations (such as clinics,
hospitals, practice groups, and insurers) to put aside personal moral
beliefs in order to facilitate convenient access to new drugs,
procedures, and technologies.
In the ordinary course of professional life, without any additional
pressures, these dilemmas arise often enough to create crises for tens
of thousands of health care entities. However, in addition to these
dilemmas there is increasing pressures upon health care participants to
facilitate or provide products or services which violate their own
consciences. Advocates of particular procedures and programs,
particularly major providers of promoters of abortion are
systematically singling out health care providers and entities to
squeeze and compel them to abandon their moral values as the price to
pay to remain in the profession and market.
ii. overview of the development of the crisis of conscience
I have closely studied abortion law and policy in the United States
for thirty years, and have seen the transformation. Initially,
advocates of permissive abortion argued that they merely desired to
give women the private choice to select abortion. They asserted that
they did not intend to force anyone to do anything, but only sought to
repeal laws that prohibited one option--abortion--that they believed
should be available to pregnant women.
However, after that goal was achieved by judicial
decree,2 it was not long before they demanded that public
funds be available, that public hospitals should be forced to provide
the service which they considered so desirable. In a series of cases,
they repeatedly tried to get the Supreme Court to interpret the
Constitution so as to invalidate laws that restricted public funding
and provision of abortion in public hospitals.3 Fortunately,
the U.S. Supreme Court turned them down every time. Sadly, a number of
state courts have not been so fair, and have accepted these zealots'
demands that the state constitutions be interpreted to judicially
mandate public funding of abortion.4
---------------------------------------------------------------------------
\2\ Roe v. Wade, 410 U.S. 113 (1973).
\3\ See Maher v. Roe, 432 U.S. 464 (1977); Beal v. Doe, 432 U.S.
438 (1977); Poelker v. Doe, 432 U.S. 519 (1977); Harris v. McRae, 448
U.S. 297 (1980); Williams v. Zbaraz, 448 U.S. 358 (1980); Rust v.
Sullivan, 500 U.S. 173 (1991).
\4\ See, e.g., Alaska v. Planned Parenthood, 28 P.3d 904 (Alaska
2001); New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M.
1998); Women of Minn. v. Gomez, 542 N.W.2d 17 (Minn. 1995); Moe v.
Sec'y of Admin. & Fin., 417 N.E.2d 387 (Mass. 1981); Comm. to Defend
Reprod. Rights v. Myers, 625 P.2d 779 (Cal. 1981).
---------------------------------------------------------------------------
Then they tried to stop citizens who wished to exercise their right
to peacefully assemble in opposition to abortion, and to punish
individuals who tried to offer free, peaceful ``sidewalk counseling''
to pregnant women to advise them about alternatives to abortion. While
the Supreme Court has invalidated many (but not all) of such laws and
decrees,5 the effort to suppress pro-life free speech
continues, led ironically by the same organizations that championed
``the right to choose.'' 6
---------------------------------------------------------------------------
\5\ See, e.g, Frisby v. Schultz, 487 U.S. 474 (1988); Bray v.
Alexandria Women's Health Clinic, 508 U.S. 263 (1993); National
Organization for Women, Inc. v. Scheidler, 510 U.S. 249 (1994); Madsen
v. Women's Health Center, Inc., 512 U.S. 753 (1994); Schenck v. Pro-
Choice Network of Western New York, 519 U.S. 357 (1997); Hill v.
Colorado, 120 S.Ct. 2480 (June 28, 2000).
\6\ Lynn D. Wardle, The Quandary of Pro-life Free Speech: A Lesson
from the Abolitionists, 62 Albany L. Rev. 853-966 (1999).
---------------------------------------------------------------------------
Just a few years ago, they attempted to enact regulations for
accrediting medical schools and teaching hospitals to force medical
students and young doctors to be trained to perform abortions. Congress
had to step forward and pass a law to prevent that coercion and to
protect the rights of conscience of medical students, doctors and
hospitals.7
---------------------------------------------------------------------------
\7\ 42 U.S.C. Sec. 238n.
---------------------------------------------------------------------------
Recently, there have been a series of attempts to compel hospitals,
health care groups, and other hare care organizations to either provide
abortion services or to be denied the license, permission or
opportunity to engage in the health care service.8 Also,
there have been attempts to mandate that health care insurers and
private employers provide coverage and pay for abortion services.
---------------------------------------------------------------------------
\8\ See generally Valley Hosp. Ass'n v. Mat-su Coalition for
Choice, 948 P.2d 963, 965 (Alaska 1997); See also Doe v. Bridgeton Me'l
Hosp. Ass'n, 366 A.2d 641 (N.J. 1976).
---------------------------------------------------------------------------
The Supreme Court has declared that the Constitution protects
private choice of abortion against state prohibition.9 The
Court has emphasized that it does not compel public assistance, support
or facilitation of abortion.10 The decisions can be read as
neutrality decisions--the state must not use its power to coerce a
decision one way or another regarding childbirth or abortion. The
government may prefer, persuade, encourage, and promote one way or the
other, but it may not compel.
---------------------------------------------------------------------------
\9\ See Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v.
Casey, 505 U.S. 833 (1992); see also Maher v. Roe, 432 U.S. 464 (1977);
Beal v. Doe, 432 U.S. 438 (1977); Poelker v. Doe, 432 U.S. 519 (1977).
\10\ See supra, note 6.
---------------------------------------------------------------------------
The private choice to decline to participate in abortion deserves
no less protection than the choice to participate in abortion.
Yet zealous abortion activists continue to try to use the powers of
government to compel participation in and payment for and coverage of
abortion. Specifically, they try to compel hospitals, clinics, provider
groups, and health care insurers to provide facilities for, personnel
for, and funding for abortion.
iii. examples of abuses of rights of conscience
In repeated cases, pro-abortion extremists are trying (successfully
in many cases) to assert the position that a health care entity who
will not perform abortions must be denied access to the public market.
For instance, currently there is a battle in New Jersey in which pro-
abortion zealots are trying to stop the merger of a secular hospital
with a religious hospital group because that will result in the
hospital not performing abortions.11 Rather than helping
some abortion clinic in the area to expand or operate more actively in
the area, the pro-abortion zealots are taking the position that a
hospital who does not perform abortion must be disqualified from
participating in the health care profession.
---------------------------------------------------------------------------
\11\ Beth E. Fand, Hospital focus of reproductive rights battle,
The Burlington County Times (NJ), July 9, 2002, (viewed July 9, 2002).
---------------------------------------------------------------------------
In recent years, there have been a number of incidents involving
apparent violations of the rights of conscience of health care workers
in the United States. Well known is the attempt by the ACGME to require
all Ob/Gyn residents in all Ob/Gyn programs be trained to perform
abortions.12 During the 1999 California legislative session,
a bill was introduced that would have, among other things, disallowed
hospitals that decline to participate in abortion from receiving public
financing or state-funded health care contracts.13 In
Connecticut, after abortion rights activists learned that an outpatient
surgical center proposed by four hospitals would not perform abortion
and sterilizations, they formed a coalition to defeat the proposed
center and intervened in Certificate of Need proceedings and the
Connecticut Office of Health Care Access refused to issue a
certificate.14 Incidents in which hospital mergers to help
struggling hospitals survive have occurred in New Hampshire, Florida,
and New York, as well.15 I cite just a few headlines from
the Protection of Conscience website: ``Nurse Refused Employment,
Forced to Resign'' (she refused to participate in abortions); ``Worker
fired for refusing payment for illegal abortion (refused to sign for
welfare payment for abortion); ``Hospital Aide Fired for Refusing to
Clean Abortion Instruments''; ``Kmart Pharmacist Fired for Refusing to
Dispense Abortifacient'' (other workers had done it for her); ``Student
pressured to participate in abortion'' (in Saskatchewan, Canada, 1999);
``Foothills Hospital Now Forces Nurses To Participate In Genetic
Terminations'' (nurses angry about being forced to participate in
abortion of imperfect and late term babies); and ``More DC Medics Say
They Were Forced to Have Abortions.'' 16 Michael Bloomberg,
the new Mayor of New York, now compels abortion training as an
``additional required component to OB/GYN residency programs in all New
York City city-owned hospitals. The training is outlined in Michael
Bloomberg's Blueprint for Public Health along with a proposal requiring
victims of sexual assault to be given emergency contraception when
taken to emergency rooms. Previously, only 2 out of the 11 public
hospitals include abortion as part of their training. The training will
teach OB/GYNs how to perform abortions and provide counseling.''
17 News reports say that Bloomberg's plan ``allows residents
who object to abortion on moral grounds to forego the training.''
18 But what pro-abortion politicians consider an appropriate
exemption for rights of conscience often turns out to be mere eye wash,
narrow, ineffective and cynical. ``[T]he media mogul . . . reportedly
once told a pregnant employee to ``Kill it! Kill it!'' (The comment,
which Bloomberg has denied making, was cited in the legal papers of
Sekiko Sakai Garrison, a former Bloomberg News staffer who brought one
of three publicized sex-harassment cases against him or his company.)''
19
---------------------------------------------------------------------------
\12\ AAPLOG website, .
\13\ A.B. 525, 1999-2000 Leg., Reg. Sess. (Ca. 1999).
\14\ State of Connecticut Office of Health Care Access Applicants:
Roy D. Bebe, M.D., Harford Hospital, John Dempsey Hospital, New Britain
General Hospital, Saint Francis Hospital and Medical Center, ASC
Network Corporation Docket Number 96-547 (``Establish and Operate a
Freestanding Ambulatory Surgery Center in Avon'') and Applicant Saint
Francis Hospital and Medical Center Docket Number 96-537 (``Establish
and Operate a Freestanding Ambulatory Care Center in Avon'') letters
denying applications dated September 29, 1997, signed by Raymond J.
Gorman, Commissioner.
\15\ N.H. Att'y. Gen. Rep. on Optima Health, March 10, 1998. City
of St. Petersburg v. Bayfront Medical Center, Inc., Bayfront Health
System, Inc. and Baycare Health System, Inc. Case No. 8:00-CV-623-27A (
M.D. Fla.)--Middle District of Florida Tampa Division Proposed Final
Order--approved by City Council on April 10, 2001S. 333, 2001-2002 Reg.
Sess. (Ny. 2001) (requiring insurance coverage for ``certain women's
reproductive health services,'' by hmos, including abortion); A. 2674,
2001-2002 Reg. Sess. (Ny. 2001) (requires review of changes in hospital
mission statement); A. 4397, 2001-2002 Reg. Sess. (Ny. 2001) (public
health council to find that ``health care needs'' will continue to be
met after a merger ).
\16\ Protection of Conscience Project, http://
www.consciencelaws.rg/Repression-Conscience.
html> (7 Nov. 2001).
\17\ Nikki Katz, Bloomberg Requiring Additional Abortion Training,
About Women's Issues (seen 29 Jan 2002); NYC Mayor to Mandate Abortion
Training for Docs, Village Voice, Jan. 8, 2002.
\18\ Id.
\19\ Id.; Cybercase News Service, Jan. 9, 2002.
---------------------------------------------------------------------------
These examples reveal only the tip of the iceberg. A landmark
empirical study of, inter alia, nurses attitudes about and difficulties
encountered because of personal objection to abortion and other medical
procedures in the 1980s revealed that approximately 5% of the nurses
sampled (which extrapolated out would amount to approximately 50,000
nurses in the United States) perceived that their assignment and
promotion opportunities may be limited by their moral and religious
beliefs about abortion.20 The nurses in this sample
``identified a total of 103 definite cases in which nurses had either
been dismissed or had their opportunities limited because of moral
beliefs . . . [F]ifty-seven cases were identified in which the nurses
beliefs about abortion had cost them opportunities for promotion or
sustained employment.'' 21 Moreover,
---------------------------------------------------------------------------
\20\ Durham, Wood & Condie, supra note____, at 257, 287.
\21\ Id. at 287.
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[a]pproximately 7% of Catholic nurses, 4% of Protestant nurses,
and 6% of those belonging to `other' religions indicated they
knew at least one other person whose opportunities with
hospitals had been limited by personal beliefs . . . Thirty-six
nurses [in the national sample] identified a total of 118 of
their colleagues who had been limited as a result of their
moral and religious beliefs.22
---------------------------------------------------------------------------
\22\ Id. at 258. Again, extrapolated over the entire nursing
profession this would represent approximately tens of thousands of
nurses who have been the victim of employment discrimination because of
their religious or moral beliefs. Id. at 258.
---------------------------------------------------------------------------
iv. existing conscience clause protection laws
These incidents attempt to circumvent existing laws enacted by
Congress and 49 states enacted to provide some protection for the
rights of conscience of health care workers in at least some
situations.23 The laws, called ``conscience clauses''
generally are drafted to protect the right of health care professional
to refuse to participate in providing a service or procedure to which
they have religious or other moral objections. Conscience clauses have
been enacted by both federal and state law makers. Sadly, many of these
laws are outdate, addressing concerns that are nearly 30 years old, but
not address the more recent threats to rights of conscience. Conscience
clauses can be traced to a specific judicial decision that provoked a
firestorm of controversy. In November 1972 a United States District
Court in Billings, Montana issued an injunction forbidding a Catholic
hospital to deny the use of its facilities to a physician who wanted to
perform a sterilization on a patient there.24 The suit to
enjoin the hospital was brought under 42 U.S.C. Sec. 1983 and 28 U.S.C.
Sec. 1343, which provide redress for deprivation of civil rights under
color of state law. The district court ruled that the fact that the
hospital had received public funds under the federal Hill-Burton Act
was alone sufficient to make the hospital a ``state actor'' for
purposes of those civil rights statutes. The next year, in direct
response to that ruling, and just months after the Supreme Court's
decision in Roe v. Wade,25 Congress passed the Church
Amendment, the original federal conscience clause, 42 U.S.C. Sec. 300a-
7, which was designed to prohibit a court or a public official from
using receipt of federal grants or assistance under three specific
acts,26 as a basis for requiring any individual or
institution to perform or assist in performing abortions or
sterilizations, if such would be contrary to religious or moral
beliefs.27 Because of the Supreme Court decision in Roe
effectively required all states to legalize nontherapeutic abortion on
demand, the conscience clause movement became immediately relevant, and
most states enacted conscience clauses to protect the right of at least
some health care providers to refuse to perform or participate in
abortions.
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\23\ There is some inconsistency in the reports on the number of
states with some conscience clause protection. Seven years ago, I
identified 44 states with such laws and six without any. Americans
United for Life, which does very reliable work, that 46 states now have
conscience clauses. See further Katherine A. White, Note, Crisis of
Conscience: Reconciling Religious Health Care Providers' Beliefs and
Patients' Rights, 51 Stan. L. Rev. 17031707 n. 18 (1999), citing Rachel
Benson Gold, Special Analysis: Provider `Conscience' Questions Re-
emerge in Wake of Managed Care's Expansion, in State Reproductive
Health Monitor 18 (1997). AUL identifies the four states without any
protection of rights of conscience as Alabama, Mississippi, New
Hampshire and Vermont. With the aid of a very good research assistant,
Brittany Howick, however, I have found that Mississippi and New
Hampshire each have a law protecting the rights of conscience in the
context of living wills or end of life directives made for a patient by
another. Thus, it appeals that all states except Alabama and Vermont
have some statutory protection for some rights of conscience of some
health care providers in at least some cases.
\24\ See Taylor v. St. Vincent's Hospital, 369 F.Supp. 948, 950
(D.C.Mont., 1973) (quoting H.R. No. 93-227; 1973 U.S.Code Cong. &
Admin.News p. 1553), aff'd 523 F.2d 75 (9th Cir. 1975).
\25\ 410 U.S. 113 (1973).
\26\ The three acts are: The Public Health Service Act, the
Community Mental Health Centers Act, and the Developmental Disabilities
Services and Facilities Construction Act.
\27\ 1973 U.S. Code Cong. & Admin. News 1473, 1553.
---------------------------------------------------------------------------
The Church Amendment is still the main federal protection for the
rights of conscience of health care providers. Additionally, Title VII
of the Civil Rights Act requires employers generally to accommodate the
religious beliefs of their employees that do not cause undue
hardship.28
---------------------------------------------------------------------------
\28\ 42 U.S.C. Sec. 2000.
---------------------------------------------------------------------------
Also, in 1997 Congressional ``amendments extend[ed] conscience
protections to cover Medicaid and Medicare managed care plans, which
may now refuse to `provide, reimburse for, or provide coverage of a
counseling or referral service if the . . . organization offering the
plan . . . objects to the provision of such service on moral or
religious grounds . . .' '' 29
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\29\ Katherine A. White, Note, Crisis of Conscience: Reconciling
Religious Health Care Providers' Beliefs and Patients' Rights, 51 Stan.
L. Rev. 1703, 1708 (1999), citing Balanced Budget Act of 1997, Pub. L.
No. 105-33, tit. IV, Sec. 1852(j)(3)(B), 111 Stat. 251, 295.
---------------------------------------------------------------------------
Forty-nine states provide at least some protection for rights of
conscience of some health care providers in some
circumstances.30 (Only Vermont has no statutory protection
for rights of conscience whatever.) However, only one state, Illinois,
has a comprehensive conscience protection law that covers all health
care providers, institutions, and payers and applies to all health care
services. One other state, Washington, protects the right of conscience
to refuse to participate in any health care services and covers all
individuals but only religiously-affiliated institutions.
---------------------------------------------------------------------------
\30\ Current State Statutes, January 2002, in Americans United for
Life, Health Care Rights of Conscience Act, Model Legislation and
Policy Guide, January 2002 (herein ``AUL Rights of Conscience Act'').
---------------------------------------------------------------------------
Abortion is the focus of most conscience clauses. Forty-five states
allow some health care workers to refuse to participate in abortions.
Twenty-five states' conscience clauses cover only abortion. Ten states
allow health care workers to exercise their right of conscience to not
participate in abortion only if working for individuals or private
institutions. Two states conscience protection laws cover abortion but
apply only when the health care provider is an individual, and one
other state has a similar restriction covering sterilization also. Four
states cover specifically abortion and contraception. One state covers
health care providers regarding abortion, sterilization and artificial
insemination, and another covers only abortion, abortifacients, and
sterilization. At least three states (California, Mississippi and New
Hampshire, and I suspect more but have not done the research) protect a
right of health workers to decline to participate in some end-of-life
decision implementations in limited circumstances. Two states cover
counselors and social workers in some contexts. One state protects the
right of pharmacists to not participate in abortion, assisted suicide
and euthanasia. Eleven states protect the rights of conscience of
medical and nursing students in some situations. Only nine of the
sixteen states that mandate health insurance plans to include
contraceptive drugs or devices if prescription drugs are covered
contain any conscience clause provisions (usually limited to religious
employers).
Existing conscience clause laws are inadequate as drafted for at
least five major reasons. First, most are very narrow in terms of the
practices, procedures or contexts in which they apply--most were
drafted with abortion and sterilization in mind and go no further.
Second, many of them are very narrow and restrictive, covering only a
small group of health care providers, not workers in the health care
industry generally. Third, the scope of protection (the discrimination
forbidden) is limited. Fourth, the remedies and procedures for
vindicating the rights are undeveloped and restricted. Fifth, most of
the laws are outdated, having been written before many of the medical
developments occurred that have created some of the most difficult
moral dilemmas.
v. hostile interpretations
In addition to the deficiencies of drafting, there are problems of
interpretation. Judicial interpretation of these statutes has been very
grudging, even hostile. In contrast to how civil rights laws in general
have been construed during the past thirty years, conscience clauses
have received very cold, unsympathetic, unsupportive reception by state
and federal judges. Judges have given narrow, hostile interpretation
regarding procedures covered, persons covered, protections provided,
and have casually circumvented the laws by invoking other laws.
In the limited time available to me, I cannot adequately convey the
hostile tenor of most of the cases interpreting conscience clauses. Let
me just give you a few selected examples. For example, in Browhfield v.
Daniel Freeman Marina Hospital.31 In that case, a rape
victim asked an emergency room worker at a Catholic hospital about the
availability of the ``morning after'' pill. The worker declined to give
any information because of her religious beliefs. The patient brought
suit against the hospital, and the hospital raised the California
conscience clause in defense. That statute provided that ``no nonprofit
hospital or clinic which is organized or operated by a religious
corporation . . . or its administrative officers, employees, agents or
. . . governing board shall be liable . . . for failure or refusal to
perform or to permit the performance of an abortion in such facility or
clinic or to provide abortion services.'' 32
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\31\ 256 Cal. Rptr. 240 (Cal. App. 2989).
\32\ Cal. Health & Safety Code Sec. 25955k. Six years ago, this
statute was revised and recodified Cal. Health & Safety Code 123420
(2001) without substantive change.
---------------------------------------------------------------------------
Thus, the case turned on whether the morning after pill produced
abortion. Finding no definition of ``abortion'' in the statute, the
court made no effort to discern legislative intent (specifically,
regarding the morning after pill, or generally, regarding protecting
conscience rights of health care providers), and made no effort to
interpret the statute in light of the policy underlying the statute or
to achieve integrity within the structure of the provision, or to
determine as a matter of judicial notice whether the morning after pill
was understood by the medical community or the Catholic medical
community to cause abortion.33 Instead, citing dicta in
another case suggesting that at least one federal court did not
consider the morning after pill to be an abortifacient,34
the California court summarily concluded that the hospital's refusal
was not protected because the morning after pill did not cause
abortion.35
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\33\ While the conclusion of the court that the morning after pill
does not cause abortion is medically inaccurate (in at least some
cases), the method of statutory construction is even more disturbing.
The question the court had was one for which a resort to random dicta
in other cases giving unsupported judicial ruminations in the context
of interpreting entirely different statutes enacted by a different
government is not an intelligent approach to legislative
interpretation.
\34\ McRae v. Matthews, 421 F. Supp. 533 (ED. N.Y.1976), rev'd on
other grounds, Harris v. McRae, 448 U.S. 297 (1980). The court also
cited dicta from another case.
\35\ Brownfield, 256 Cal.Rptr. at 245.
---------------------------------------------------------------------------
While the conclusion of the court that the morning after pill does
not cause abortion in at least some cases is probably inaccurate, the
method of statutory construction is even more disturbing. The question
the court had was one for which a resort to random dicta in other cases
giving unsupported judicial ruminations in the context of interpreting
entirely different statutes enacted by a different government is not an
intelligent approach to legislative interpretation. The Brownfield case
is an example of how judges can manipulate the interpretation of a
statute to reach the outcome they prefer for personal or ideological
reasons. Thus, it illustrates an unfortunate but very real risk for
those who try to rely upon the current generation of conscience
clauses.
In Spellacy v. Tri-County Hospital,36 Pennsylvania
courts held that a part-time admissions clerk who claimed that she was
fired by the hospital as a result of her refusal to participate in the
admission procedures of abortion patients was not protected by the
state's conscience clause because her position was one of mere
``ancillary'' or ``clerical'' assistance.37
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\36\ 18 Empl. Prac. Dec. (CCH) para. 8871 (Pa. C.P. De. Cty.),
aff'd, 395 A.2d 998 (1978).
\37\ Id. at 5605 (relying on administrative regulations
interpreting the conscience clause). Alternatively, the court found
that the hospital had met its duty to accommodate because it had
offered her four others jobs, all of which she had declined. ``There
came a time in the Spellacy situation when the plaintiff had simply
rejected one too many reasonable accommodation offers, and her employer
could not be expected to continue generating new ones.'' Durham, Wood &
Condie, supra note____, at 318-319.
---------------------------------------------------------------------------
Likewise, in Erzinger v. Regents of University of California, the
California Appellate court noted: ``The proscription only applies when
the applicant must participate in acts related to the actual
performance of abortions or sterilizations. Indirect or remote
connection with abortions or sterilizations are not within the terms of
the statute.'' 38
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\38\ Erzinger v. Regents of University of California, 137 Cal. App.
3d 389, 394, 187 Cal. Rptr. 164, 168 (1982). The court held that 42
U.S.C. Sec. 300a-7 did not apply to prevent a university from requiring
students to participate in a comprehensive health insurance program
which included benefits for persons desiring abortions or
sterilizations.
---------------------------------------------------------------------------
The same bias is reflected in the dissenting opinion of two Montana
Supreme Court justices in Swanson v. St. John's Lutheran
Hospital.39 That case involved a wrongful discharge action
brought by a nurse-anesthetist who had worked at a hospital for eight
years. She had performed more than two dozen sterilizations, but after
participating in one particularly shocking and gruesome abortion, she
informed her supervisor that she would not participate in any more
sterilizations. The hospital administrator tried to change her mind,
referred her to her priest, and called the priest to ask him to counsel
her to change her mind. She remained fixed in her decision, and the
next day was fired by the hospital administrator. She brought suit
under Montana's conscience clause, which protects the rights of
individuals to refuse on moral or religious grounds to perform
sterilizations, and prohibits employment discrimination based on such
refusals. After a harrowing encounter with a hostile Montana trial
court, she ultimately prevailed in the Montana Supreme
Court.40 However, two of the Montana Supreme Court justices
would have denied her claim on the ground, inter alia, that her reasons
for refusing to participate in any more sterilizations were emotional
rather than moral.41
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\39\ 597 P.2d 702 (1979).
\40\ See infra, notes ____ through ____ and accompanying text. See
also Swanson v. St. Johns Lutheran Hospital, 615 P.2d 882 (Mont. 1980)
(affirming award of $11,950.86 to Nurse Swanson, and affirming
rejection of her claim for punitive or future damages for lack of
evidence).
\41\ 597 P.2d at 714. The hospital administrator himself obviously
perceived her denial to be based on religious/moral grounds, and
treated it as such, contacting the nurse's priest in an effort to have
him influence her to drop her objections. The dissenters failed to
explain the distinction between ``emotional'' and ``moral'' grounds.
Are they really mutually exclusive categories? Their bias against
conscience clause rights is evident.
By contrast, in a case interpreting a conscience clause that
protects the right of physicians from employment discrimination because
they have performed abortions or sterilizations, a pair of federal
courts did not require any evidence about the moral or religious basis
for a doctor's practice or sterilizations. See Watkins v. Mercy Medical
Center, 364 F. Supp. 799 (D. Ida. 1973), aff'd, 520 F.2d 894 (9th Cir.
1975). There appears to be at least a hint of anti-Catholic, anti-
prolife bias in the way the conscience clauses have been interpreted.
See also In Re Raquena, 517 A.2d 886,891 (N.J. Super. 1986) (lecturing
Medical Center that unwillingness to participate in withdrawal of life-
support food/hydration systems was not ``pro-life'', and requiring the
hospital to participate in the withdrawal over its and staff's moral
objections). See further infra notes ____ through ____ and accompanying
text.
---------------------------------------------------------------------------
In Catholic Charities of Sacramento, Inc. v. Superior
Court,42 a Catholic charitable organization was held not to
qualify for the ``religious employer'' exemption from a California
statute requiring employer to provide prescription contraceptives in
benefits package, and was also denied constitutional protection from
that requirement which violated basic Roman Catholic doctrine. .
---------------------------------------------------------------------------
\42\ 109 Cal.Rptr.2d 176 (3d D.Cal.App. 2001).
---------------------------------------------------------------------------
In Valley Hosp. Ass'n, Inc. v. Mat-Su Coalition for
Choice,43 the Alaska Supreme Court held that that state's
conscience clause was unconstitutional to the extent it applied to
allow a private nonprofit hospital that was the sole hospital in the
Mat-Su valley to refuse to provide abortions because it was a de facto
quasi-public institutions.
---------------------------------------------------------------------------
\43\ 948 P.2d 963 (Alaska 1997).
---------------------------------------------------------------------------
In Larson v. Albany Medical Center,44 a New York state
appellate court held that employees fired in alleged retaliation for
exercising rights protected under the state conscience clause had not
no private right of action.
---------------------------------------------------------------------------
\44\ 676 N.Y.S.2d 293 (3d App. Div. 1998).
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vi. the history of protection of conscience in america
The history of protection of conscience in America is directly
relevant to the protection of rights of conscience of health care
providers in three ways. First, protection for rights of conscience
underlie and historically preceded the First Amendment.45 In
June, 1776, even before the Declaration of Independence, the Virginia
Declaration of Rights provided, inter alia, that ``all men are equally
entitled to the free exercise of religion, according to the dictates of
conscience . . .'' 46 After centuries of government support
for the state church in Virginia, the Baptists led a petition campaign
demanding that ``every tax upon conscience . . . be abolished.''
47 In 1779, Thomas Jefferson introduced his Bill for
Establishing Religious Freedom in the Virginia Legislature (House of
Burgesses). It declared that ``to compel a man to furnish contributions
of money for the propagation of opinions which he disbelieves, is
sinful and tyrannical.'' (If Jefferson thought that about merely
funding things against ones will, one can imagine what he would say
about being compelled to perform acts or services like abortion or the
MAP against one's conscience.) Jefferson's Bill did not pass for over
six years, but in December, 1785, while Jefferson was Minister to
France, James Madison engineered passage of Jefferson's Bill. As
finally enacted it declared that ``no man shall be . . . molested or
burdened in his body or his good, nor shall otherwise suffer on account
of his religious opinions or belief . . . and that the same shall in no
wise diminish, enlarge or effect their civil capacity.'' So proud was
Jefferson of his role in securing protection for rights of conscience
that he asked that his gravestone be inscribed: ``Thomas Jefferson,
Author of the Declaration of Independence, of the Statute of Virginia
for Religious Freedom, and Father of the University of Virginia.''
48
---------------------------------------------------------------------------
\45\ Joseph L. Hassan, Freedom of Conscience in Early Virginia: A
Precursor to the Religion Clauses of the First Amendment, Paper
submitted for Origins of the Constitution, Apr. 17, 1998.
\46\ Kermit Hall, et al, American Legal History: Cases and
Materials 70 (1996).
\47\ Hassan, supra, at 12.
\48\ Hassan, supra, at 17.
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Second, it is critical to understand that in America in the 1770s
and 1780s two different views about matters of conscience and religion
were competing.49 One view, with a high and honorable
heritage traceable to John Locke's famous essay, A Letter Concerning
Toleration, viewed accommodation of religious variety and differences
to be a matter of utilitarian toleration or accommodation. In some of
his early writing, at least, Thomas Jefferson advocated this approach.
Respect matters of conscience and religion as simply a matter of
toleration--sound public policy, good neighborliness and good Polistes.
On the other hand, the Virginia Baptists and most famously, James
Madison, spoke of matters of conscience and religion not merely as
toleration but as fundamental, natural rights. It makes a big
difference whether respect for another's moral convictions is given
simply as a matter of convenience and tolerance (to be suspended when
outweighed by other political considerations, for example, in time of
emergency), or whether that is a matter of your neighbor's basic civil
rights. Fortunately, the Founders ultimately concluded that protection
for conscience was a matter of fundamental right. Early colonial
charters and state constitutions spoke of it as a right, and during the
frightening emergency of the War of Independence, rather than suspend
respect for divergent moral views, many states granted exemptions from
conscription to persons with religious scruples against war, such as
Quakers and Mennonites. In 1775, the Continental Congress granted a
general exemption from military conscription to religious groups. The
Virginia Declaration of Rights was initially drafted too guarantee
``fullest toleration'' of religion; but Madison amended it and when it
passed, it protected the rights of religion: ``all men are entitled to
the full and free exercise of it according to the dictates of
conscience.'' Madison's Memorial and Remonstrance expressed the
language of rights, not toleration (``The equal right of every citizen
to the free exercise of his Religion according to the dictates of
conscience is held by the same tenure with all our other rights.''
50 Of course, the best example is the protection of
conscience as a right is inclusion of the right to free exercise of
religion in the First Amendment of the Bill of Rights. (James Madison,
of course, was the Father of the Bill of Rights.) Ironically, some
courts and most commentators today have slipped into using the language
of toleration and accommodation. It is time for us to reassert
emphatically the language of rights.
---------------------------------------------------------------------------
\49\ Dawn Hendrickson Steadman, The Free Exercise Clause and
Original Intent: A View Toward Exemptions, for Origins of the
Constitution, Winter Semester 2000.
\50\ Steadman, supra, at 24.
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Third, when an effort to revive the religion tax in Virginia was
made after the War of Independence, James Madison drafted his famous
Memorial and Remonstrance declaring that certain things like religious
duties ``must be left to the conviction and conscience of every man;
and it is the right of every man to exercise it as these may dictate.''
51 He explained why:
---------------------------------------------------------------------------
\51\ Id.
---------------------------------------------------------------------------
Before any man can be considered as a member of Civil Society,
he must be considered as a subject of the Governor of the
Universe: And if a member of a Civil Society, who enters into
any subordinate Association, must always do it with reservation
of his duty to the general authority; much more must every man
who becomes a member of any particular Civil Society, do it
with a saving of his allegiance to the Universal
Sovereign.52
---------------------------------------------------------------------------
\52\ James Madison, Memorial and Remonstrance cited in Hussan at
15.
---------------------------------------------------------------------------
Madison clearly understood that if men are not loyal to themselves,
to their conscience, to their God and their moral duty as they see it,
it is utterly irrational folly to expect them to be loyal to less
compelling moral obligations of legal rules, statutes, judicial orders,
or the claims of citizenship and civic virtue, much less professional
duties. If you demand that a man betray his conscience, you have
eliminated the only moral basis for his fidelity to the rule of law,
and have destroyed the foundation for all civic virtue.
Finally, the loss of virtue that results from requiring men to
violate and disregard their conscience undermines the basis for self-
government. The founders of the American Constitution really believed
that virtue in the citizenry was absolutely essential, indispensable
for this system of government to function and survive. I have brought
just a few quotes from the Founders to make this point.
Thomas Jefferson: ``[O]ur rules can have authority over such
natural rights only as we have submitted to them. The rights of
conscience we never submitted, we could not submit. We are answerable
for them to our God.'' 53
---------------------------------------------------------------------------
\53\ Thomas Jefferson (1743-1826)
---------------------------------------------------------------------------
George Washington: ``Tis substantially true, that virtue or
morality is a necessary spring of popular government. The rule indeed
extends with more or less force to every species of Free Government.
Who then is a sincere friend to it, can look with indifference upon
attempts to shake the foundation of the fabric? . . .'' 54
---------------------------------------------------------------------------
\54\ George Washington, Washington's Farewell Address from Saul
Padover,The Washington Papers (searched Sept. 9, 1999).
---------------------------------------------------------------------------
Samuel Adams agreed that ``neither the wisest constitution nor the
wisest laws will secure the liberty and happiness of a people whose
manners are universally corrupt.'' 55
---------------------------------------------------------------------------
\55\ Id.
---------------------------------------------------------------------------
James Madison told delegates to Virginia's ratifying convention:
``To suppose that any form of government will secure liberty or
happiness without any virtue in the people, is a chimerical idea.''
56 He also wrote in Federalist No. 57: ``The aim of every
political Constitution is or ought to be first to obtain for rules men
who possess most wisdom to discern, and most virtue to pursue, the
common good of society; and in the next place, to take the most
effectual precautions for keeping them virtuous whilst they continue to
hold their public trust.''
---------------------------------------------------------------------------
\56\ Id.
---------------------------------------------------------------------------
John Adams clearly warned: ``Out constitution was made only for a
moral and religious people. It is wholly inadequate to the government
of any other.'' 57 He also said: ``Liberty can no more exist
without virtue and independence than the body can live and move without
a soul.'' 58
---------------------------------------------------------------------------
\57\ J. Howe, The Changing Political Thought of John Adams 165
(1966).
\58\ 10 The Works of John Adams 284.
---------------------------------------------------------------------------
Thus, protection of conscience has been crucial to the foundation
of this nation.
vii. conclusion
This Energy and Commerce Committee has recently be involved in
hearing testimony about enormous scandals caused because businessmen
and accountants and other professional have anesthetized their
consciences in the pursuit of wealth. The consequences have been seedy,
shady, and disastrous for the companies and for the economy of the
country.
In this context, it is more than a little ironic to hear abortion
zealots plead that Congress must look the other way while they continue
to coerce health care professionals and entities to ignore their
consciences. The results of not protecting and encouraging the exercise
of conscience in the health care profession will be just as disastrous
as it has been for Enron and Worldcom and perhaps for Martha Stewart.
Currently pending in Congress is the Abortion Non-Discrimination
Act. It is a very small, but very important step in the right
direction. It simply protects conscience by requiring modest
accommodation for entities that cover and pay for and provide medical
services. It merely prohibits use of state power to coerce abandonment
of conscience and moral principles. It is a true neutrality provision,
guaranteeing each health care participant the right to choose for
himself or herself or itself to follow the values and moral precepts
they espouse.
I urge this Committee to act promptly to enact the Abortion Non-
Discrimination Act and other acts which will address the crisis of
conscience and begin to eliminate the intolerance, coercion and
discrimination against health care participants who do not believe in
participating in the provision of abortion and other morally
controversial procedures.
Attachment
Summary of State Laws Protecting Rights of Conscience--July 8, 2002
------------------------------------------------------------------------
------------------------------------------------------------------------
Alabama................................... Code of Ala. Sec. 22-8A-8
(2001) No nurse, physician
or healthcare provider is
required to withdraw life-
sustaining treatment.
Health care provider will
attempt to transfer patient
to other provider.
Alaska.................................... Alaska Stat. Sec. 18.16.010
(b) ``Nothing in this
section requires a hospital
or person to participate in
an abortion, nor is a
hospital or person liable
for refusing to participate
in an abortion under this
section.''
Arizona................................... A.R.S. Sec. 36-2151
Hospital, physician or
other medical personnel may
refuse to perform an
abortion for moral or
religious reasons.
Arkansas.................................. A.C.A. Sec. 20-16-304, 601
(2001) No person or
hospital has to participate
in an abortion. Medical
personnel may refuse to
give contraceptives or
information about such
things if it is against
their religious beliefs.
California................................ Cal. Health & Safety Code
123420 A physician, nurse
or other hospital employee
may refuse to participate
in an abortion for moral or
religious reasons.
Admission to a school may
not be denied due to
applicant's unwillingness
to participate in an
abortion. Non-profit
facility or religious
hospitals do not have to
perform abortions.
Colorado.................................. C.R.S. 18-6-104 (2001)
Hospital does not have to
admit a person for the
purpose of performing an
abortion. A person who is
an employee at a hospital
does not have to perform an
abortion if it is against
his morals or religious
principles.
C.R.S. 25-6-102, 207 (2001)
No private institution or
physician is required to
give out contraceptive. A
county or city employee may
refuse the duty to supply
contraceptives.
Connecticut............................... Conn. Gen. Stat. Sec. 19a-
580a (2001) Any physician
who does not wish to comply
with a living will must
transfer the patient.
Delaware.................................. 24 Del. Code Ann. 1791 No
person is required to
participate in an abortion.
No hospital has to
participate.
Florida................................... Fla. Stat. Sec. 390.0111
(2001) Hospital and person
do not have to participate
in abortion if it against
moral or religious
principles.
Fla. Stat. Sec. 381.0051
(2001) Physician or other
person may refuse to give
contraceptives for medical
or religious purposes.
Georgia................................... O.C.G.A. Sec. 16-12-142
(2001) No person or
hospital shall be required
to perform an abortion when
it is against his moral or
religious principles.
O.C.G.A. Sec. 49-7-6 (2001)
Any employee can refuse to
provide family planning
services if it is contrary
to his religious beliefs
Hawaii.................................... H.R.S. Sec. 453-16 Nothing
in this section shall
require any hospital or any
person to participate in
such abortion nor shall any
hospital or any person be
liable for such refusal.
Idaho..................................... Idaho Code Sec. 18-612
(2002) No hospital or
person shall be required to
perform an abortion if it
is objected to for moral
reasons.
Illinois.................................. 745 ILCS 70--Rights of
Conscience are protected
for all procedures. Sec.
11.2--Health Care Payers
are not liable. Sec. 12--
Right to recover treble
damages, may not be less
than $2,500.
Indiana................................... Ind. Stat. 16-34-1-3 to 5.
No hospital shall be
required to perform an
abortion. No person shall
have to do so if it against
his moral or religious
principles and one cannot
be required to participate
in an abortion as a
condition of training or
employment.
Iowa...................................... Iowa Code Sec. 146.1&2
(2002) No person shall be
required to perform an
abortion if it against his
moral or religious
convictions. No hospital
that is not maintained by
public authority must
perform an abortion.
Kansas.................................... K.S.A. Sec. 65-443, 444
(2001) No person or
hospital is required to
perform an abortion.
Refusal to do so is not
grounds for civil liability
against any person.
Kentucky.................................. KRS Sec. 311.800 (2001) No
public funds shall be used
to perform an abortion. No
private hospital or person
shall be required to
perform an abortion.
Louisiana................................. La. R.S. 40:1299.31 to .32
(2002) No person in the
medical field can be liable
for refusing to participate
in abortion. No social
service worker is liable
for refusing to recommend
abortions. No hospital
shall be required to
perform an abortion.
Maine..................................... 22 M.R.S. Sec. 1591-2
(2001) no person or
hospital is required to
perform an abortion. No
hospital, firm, or
education institution can
discriminate for a person's
refusal to perform an
abortion.
22 M.R.S. Sec. 1903 (2001)
A private institution or
physician or their agent
may refuse to provide
family planning services if
it is against their
religious or moral beliefs.
Maryland.................................. Md. Health-General Code Ann.
Sec. 20-214 No person or
hospital has to participate
in an abortion, artificial
insemination, or
sterilization. There is no
immunity if a person's
referring the patient to a
source of pregnancy
termination would have
prevented death or long
lasting injury.
Massachusetts............................. Mass. Ann. Laws ch. 112,
Sec. 12I (2002) Any person
who objects to abortion or
sterilization will not be
required to participate.
Such an objection will not
be used against a person to
keep him out of medical
school, social work, etc.
Michigan.................................. MCLS Sec. 333.20181, 20182
(2002) No hospital,
teaching institution or
person connected with such
a facility is required to
perform an abortion if
objected to on
professional, moral, or
religious grounds.
Minnesota................................. Minn. Stat. Ann. 145.414,
145.42 No hospital or
person is liable if they
refuse to participate in an
abortion. No health Plan
company will be held liable
for not providing
abortions.
Mississippi............................... Miss. Code Ann. Sec. 41-41-
215 ``A health-care
provider may decline to
comply with an individual
instruction or health-care
decision for reasons of
conscience.''
Missouri.................................. Sec. 197.032 R.S.Mo.No
person or public or private
hospital shall be required
to treat a person for
abortion.
Sec. 188.110 R.S. Mo.
(2001) No employer can
discriminate against
employees for their refusal
to participate in an
abortion.
Sec. 188.110 R.S.Mo. (2001)
No school can deny
admittance for a person's
refusal to participate in
an abortion
Montana................................... Mont. Code Anno., Sec. 50-
20-111 (2001) No private
hospital need provide
abortion. All persons have
the right to refuse or
participate in an abortion.
Person can mean individual
or corporations.
Mont. Code Anno. Sec. 50-5-
502 to 505 No hospital or
medical facility or persons
shall have to perform
sterilization. Person has
the right to injunctive
relief or monetary damages.
Hospital or medical
facility shall not loose
any privileges or
immunities.
Nebraska.................................. Neb. Rev. Stat. ' 28-337 No
hospital in the state,
public or private, must
perform an abortion, but it
must inform the patient of
this policy.
Nevada.................................... Nev. Rev. Stat. 632.475--
Nurse or somebody providing
direct assistance to a
patient does not have to
assist in an abortion if it
is against her morals
New Hampshire............................. RSA 137-H:6 (2002) A
physician who, for
conscience sake, cannot
comply with a living will
shall without delay
transfer the patient to
another physician.
New Jersey................................ N.J. Stat. Sec. 2A:65A-1
``No person shall be
required to perform or
assist in the performance
of an abortion or
sterilization.''
N.J. Stat. Sec. 2A:65A-2
``No hospital or other
health care facility shall
be required to provide
abortion or sterilization
services or procedures.
N.J. Stat. Sec. 2A:65A-2 No
civil liability for those
who refuse to perform
abortion or sterilization.
New Mexico................................ N.M. Stat. Ann. Sec. 30-5-2
(2001) No person or
hospital has to participate
in abortion for moral or
religious reasons
N.M. Stat. Ann. Sec. 24-8-6
(2001) No hospital is
required to admit a patient
for sterilization if done
so on religious grounds.
New York.................................. NY CLS Civ R Sec. 79-i
(2002) No person shall be
required to perform an
abortion if it is against
his conscience or religious
beliefs.
North Carolina............................ N.C. Gen. Stat. Sec. 14-
45.1 Physician or nurse do
not have to perform
abortion if it is against
their religious principles.
A hospital or healthcare
institution does not have
to offer abortions.
North Dakota.............................. N.D. Cent. Code, Sec. 23-16-
14 (2002) NO hospital or
person shall be required to
perform an abortion.
N.D. Cent Code 14-02.4-15.1
(1997) Government may not
discriminate against health
care institute or private
agency for refusal to
participate in any health
care service that is
against written religious
and moral policies.
Ohio...................................... ORC Ann. 4731.91 (Anderson
2002) No public or private
hospital or person has to
participate in an abortion.
Oklahoma.................................. 63 Okl. St. Sec. 1-741 No
Private hospital or person
has to participate in an
abortion.
Oregon.................................... Or. Rev. Stat. ' 435.485
(2001) No physician must
give advice to a patient
concerning abortion, but he
must advise the patient. No
hospital employee is
required to participate in
an abortion.
Or. Rev. Stat. Sec. 435.225
(2001) ``Any employee of
the Department of Human
Services may refuse to
accept the duty of offering
family planning and birth
control services'' if it
conflicts with religious
principles.
Pennsylvania.............................. 18 Pa. C. S. Sec. 3202
(2002) Right of Conscience
is protected for all person
who desires to not provide
an abortion.
18 Pa. C.S. Sec. 3213.
Except for a facility
devoted to abortions, no
facility is required to
perform abortions, and no
medical personnel, employee
or student is required to
participate in an abortion.
Civil Liability may reach
$5,000.
43 P.S. Sec. 955.2 (2002)
No hospital or person is
required to perform an
abortion or sterilization.
No school can deny
admission due to a person's
refusal to participate in
abortion or sterilization.
Rhode Island.............................. R.I. Gen. Laws Sec. 23-17-
11 (2001) No person shall
be required to participate
in an abortion or
sterilization if such are
objected to on moral or
religious grounds.
South Carolina............................ S.C. Code Ann. Sec. 44-41-
40 (2001) No private
institution is required to
perform an abortion.
South Dakota.............................. S.D. Codified Laws Sec. 34-
23A-12 (2001) No person who
refuses to perform an
abortion shall be held
liable.
Tennessee................................. Tenn. Code Ann. Sec. 39-15-
204, 205 (2001) No hospital
or person need provide an
abortion.
Tenn. Code Ann. Sec. 68-34-
104 No private institution
or physician is required to
provide contraceptive
procedures or supplies if
refusal is based on
conscientious or religious
objections.
Texas..................................... Tex. Occ. Code Sec.
103.001, 002 (2002) No
physician, nurse or
employee of a hospital
maybe required to
participate in an abortion.
Tex. Occ. Code Sec. 103.003
(2002) A person whose
rights are violated may sue
the hospital, medical
facility or educational
institution for an
injunction plus affirmative
relief, including
reinstatement, backpay plus
10%
Tex. Occ. Code Sec. 103.004
Hospital need not provide
abortions.
Tex. Ins. Code Ann. art.
20A.09(m)--No, HMO,
physician, or provider is
required to recommend or
provide services that
violate religious
convictions.
Utah...................................... Utah Code Ann. Sec. 76-7-
306 (2001) No person shall
be required to perform an
abortion if it is against
his moral or religious
beliefs. No private or
denominational hospital
shall be required to
perform abortions.
Virginia.................................. Va. St. Sec. 18.2-75 A
hospital, medical facility
or physician do not have to
perform abortion.
Washington................................ Wash. Rev. Code Ann.
70.47.160 (2002) No HMO
need provide or pay for
services that are
religiously objectionable.
Wash. Rev. Code Ann. Sec.
70.122.060 (2002). No
nurse, physician, or other
health care practitioner
may be required by law or
contract in any
circumstances to
participate in the
withholding or withdrawal
of life-sustaining
treatment if such person
objects to so doing
West Virginia............................. W. Va. Code Sec. 16-2F-7
(2001)--No person need
participate in and abortion
if they refuse for medical
reasons or any others.
W. Va. Code Sec. 16-2B-4
(2001) Any employee of the
state may refuse the duty
of providing family
planning services.
W. Va. Code Sec. 16-30-12 A
health care facility does
not need to change it
policies that are grounded
in sincerely held religious
convictions or moral
principles.
A health care provider need
not provide service that is
contrary to its religious
beliefs. (Living Wills
etc.)
Wisconsin................................. Wis. Stat. Sec. 253.09
(2001) No hospital or
person is required to
participate in abortion or
sterilization.
Wyoming................................... Wyo. Stat. Sec. 35-6-105,
106 (2001) No private
hospital or institution or
person need provide or
participate in abortions.
(Also mentions Euthanasia,
but appears to be in
context of abortion.)
Wyo. Stat. Sec. 42-5-101
(2001) Any person may
refuse the duty of
providing family planning
or birth control services
if done so for religious or
personal beliefs.
------------------------------------------------------------------------
Mr. Bilirakis. Thank you, Mr. Wardle. I felt compelled to
introduce the legislation that we are discussing today, because
the intent of the legislature has always meant an awful lot to
me. And in trying to determine what was intended, I reach to
these additional views signed by Senators Bill Frist,
McConnell, Gregg, Hutchinson, Coats and DeWine, where they
said, ``We believe that the term `health care entity,' ''--and
I don't know how anyone can, in my opinion, look at it
logically and come to the conclusion that a health care entity
could exclude a hospital. But we believe that the term,
``health care entity,'' was intended to be read in the
straightforward manner of including not only the specific
entities mentioned but also those which are routinely seen as
health care entities in common usage and other Federal laws,
such as a hospital, provider-sponsored entity, health
maintenance organization, health plan, et cetera, et cetera. So
that is why I felt compelled to do this, because, as Mr. Wardle
said, there is a gap there--I am not sure if you used that
exact word--and we have got to try to fill that gap.
Ms. Vosburgh----
Ms. Vosburgh. Yes.
Mr. Bilirakis. [continuing] You have indicated that, if I
understood you correctly, there is a provider across the street
from the hospital----
Ms. Vosburgh. Yes.
Mr. Bilirakis. [continuing] who performs----
Ms. Vosburgh. Yes, that is abortions.
Mr. Bilirakis. [continuing] elective abortions.
Ms. Vosburgh. Abortionist lamage, yes.
Mr. Bilirakis. So if Valley Hospital were afforded
conscience protection, then it is likely that women would still
have access to elective abortions, correct?
Ms. Vosburgh. Yes, they would. In fact, she does her first
term trimester abortions in her own clinic.
Mr. Bilirakis. In her own clinic.
Ms. Vosburgh. She uses the hospital for second trimester
abortions.
Mr. Bilirakis. Well, could she perform the second trimester
abortions in her own clinic?
Ms. Vosburgh. No.
Mr. Bilirakis. She could not.
Ms. Vosburgh. No. It is a State law; she has to use the
hospital.
Mr. Bilirakis. Okay.
Ms. Vosburgh. But, you know, why should we be forced to----
Mr. Bilirakis. How many--I don't know the answer to this,
and I guess it is always dangerous to ask a question you don't
know the answer to--but how many hospitals are there in the
valley?
Ms. Vosburgh. Just one.
Mr. Bilirakis. Just one.
Ms. Vosburgh. Anchorage is about 50 miles away.
Mr. Bilirakis. About 50 miles away. Are there hospitals
there where there may not be a problem regarding their
conscience in terms of performing abortions?
Ms. Vosburgh. Providence is a Catholic hospital; it will
not allow abortions there either. But there is always a
regional--there is the Vets Hospital, so I am not sure if she
would do her second trimester abortions there. My suggestion
would be to her to build her own facility if she wants to do
second trimester abortions.
Mr. Bilirakis. Okay. Do you feel then that your experience
in Alaska--you obviously feel very strongly about this point,
but do you feel that that experience presents a compelling
argument for clarifying Congress' original intent in providing
Federal conscience protections?
Ms. Vosburgh. Yes. I believe if this had been in place
solidly, that this probably would not have happened.
Mr. Bilirakis. Yes. It is just unfortunate. Sometimes you
can't see the forest for the trees up here, and you are just so
overloaded with so many things on your plate that the intent of
the Congress at the time was not played out accurately in terms
of what was meant by ``health care entity.''
Ms. Vosburgh. One thing I did want to mention is the cases
that I brought up here are hard cases--the rape, incest and
life of the mother--which are--you know, those are the ones
that are tear-wrenching and things. But the fact of the matter
is even Planned Parenthood admits that 95 percent and more--
some people say only 1 percent--are for life, incest and rape.
So 95, 96, 97 percent of all abortions are for nearly birth
control purposes. Why should we----
Mr. Bilirakis. Well, let us not--yes. I don't disagree with
you. Let us not go into that.
Ms. Vosburgh. All right.
Mr. Bilirakis. Mr. Weiss, you mention in your testimony
that you oppose extending conscience clause protections to
other health care entities because, using your words, ``Its
burdens fall primarily on those who do not share the beliefs
that motivate the refusal.'' Would you agree that forcing a
Catholic hospital, which is based on a faith that finds
abortion objectionable, and I think you would agree with that,
to perform abortions would also place a burden on that entity
based on a belief that this institution does not share if we
are talking about placing a burden?
Ms. Weiss. Chairman, it is a matter of balancing the rights
involved. The question there is what kind of institution is it?
Let us just take for a minute Valley Hospital as against an
institution that I think would be entitled in many cases to
exemptions from the public health laws, which would be a
privately funded Christian Science Sanitorium. Valley Hospital,
just by way of example, was held to be a quasi-public entity by
the Alaska Supreme Court for three reasons. First, because it
was built on public land, 5 acres donated by the city, with
over $10 million in public funds. It operated on very
significant public funds. It had been granted a certificate of
need by the State through a regulatory process which gave it a
health care monopoly in the valley, in return for which it
promised to meet the health care needs of the valley. It is the
only hospital in the valley in which second trimester
procedures can be performed.
Mr. Bilirakis. Well, how would you feel about it if it were
a Catholic hospital?
Ms. Weiss. Well, then it would depend for me on whether the
Catholic hospital met these same kinds of criteria. Is it a
hospital that was built with or on public land? Is it operated
significantly with public dollars? Does it treat the general
public? Does it employ the general public? If so, then I submit
it should abide by public health laws. If not, as is the case,
for example, with the Christian Science Sanitorium, built with
private funds, operated with private funds, it employs
Christian scientists, it serves Christian scientists, it heals
exclusively through prayer, that kind of pervasively sectarian
health care institution ought, in general, to be out from under
public health laws that are repugnant to its beliefs, because
it is serving a population of believers.
Mr. Bilirakis. Thank you, Ms. Weiss. My time has expired.
Ms. Capps?
Ms. Capps. Thank you very much, Mr. Chairman. And, Ms.
Weiss, I will give you a chance to continue. I want to start
with the premise that I understand from colleagues who have
proposed this legislation that H.R. 4691 is a small technical
change in the law and give you an opportunity to agree or
disagree and then expand on that.
Ms. Weiss. I think that really it is clear from the
comparison of the Coats Amendment with the comparison of the
chairman's bill that it is by no means a small technical change
in the law. The Coats Amendment defines the term, ``health care
entity,'' in this way. The term, ``health care entity,''
includes an individual physician, a post-graduate physician
training program or a participant in a program of training in
the health professions. The Coats Amendment was passed to
address what this body, Congress, viewed as a problem with
mandatory--with a professional standard that the Accreditation
Council for Graduate Medical Education had issued to require
residency programs either to offer or to arrange abortion
training for residents.
Just to correct the record here, that professional standard
at all times, when it was first promulgated and now, has
provided an opt-out for any individual resident or physician
who does not want to participate in abortions. It has never, by
its terms, forced any doctor who had an objection personally to
perform any abortion.
So this body responded to address the problem in residency
programs. This new bill, as I think you know, applies not
simply to fit individual physicians and residency programs but
to hospitals, health plans, HMOs, insurance companies or any
other kind of health care facility, organization or plan. In
other words, it applies to everybody. And instead of applying
merely to the provision of abortions or referral for abortions
or training in those things, it applies also to providing
coverage of abortions or paying for them. So it vastly expands
the kinds of entities that can have exemptions and the
exemptions they can claim. That is why, for example, in the
example I gave, a Medicaid managed care organization, an HMO,
that participates in the Medicaid Program, could simply refuse
to discuss abortion, even abortion that a woman was entitled to
under Federal law.
Ms. Capps. And at this point, I would appreciate just a
brief answer from the other three. I want to really get at the
distinction between the conscience clause for an individual
provider and what it means to be offering a service. And do you
think taxpayer dollars should provide that service, such as a
hospital, a clinic or an HMO? And maybe each of you have a
chance--I would like to ask if, in your mind, you see no
corporate responsibility--you, for example, Ms. Vosburgh, being
on the board of a hospital--no corporate responsibility to
provide the services that the taxpayers have funded you with?
Ms. Vosburgh. It is an elective--the abortions that are
done there are elective, and, no, I don't see anything. The
bill that is trying to be passed here would give a conscience
clause out, not only to the doctors and nurses, which are
already provided----
Ms. Capps. Yes.
Ms. Vosburgh. [continuing] but for the entities themselves.
Ms. Capps. But let us get at, and I will ask, Mr. Wardle,
you too to answer here, if there are further distinctions that
can be made. Do you believe also that an institution is the
same as an individual in terms of the conscience clause? And
that we who fund here take very seriously our responsibility to
use taxpayer dollars wisely, that when we set out to fund the
Medicaid and the various provisions that are authorized under
the Constitution of this United States, that an institution has
the right to opt-out of that responsibility?
Mr. Wardle. Well, thank you, Ms. Capps, Representative
Capps. I would like to respond in two ways--three ways. First,
you have used the term, ``corporate responsibility.'' That is a
wonderful term, and it ought to be on our mind, and the purpose
of this bill is to protect corporate responsibility,
responsibility meaning conscience, ethics, principles. Second,
look at the history of the protection, the conscience clause
laws in this country. The very first one that was passed was
passed by Congress. It was the Church Amendment passed almost
exactly 30 years ago, and it was designed to protect the rights
of institutions to not have to perform abortions.
And, third, is there a difference between individuals and
corporations? Yes, there is, but with respect to protecting
rights of conscience, where will you draw the line? Are you
going to say you, as an individual, have the right to free
speech, but, oh, no, corporations cannot engage in free speech,
newspapers, radio companies, television----
Ms. Capps. I am going to interrupt just because--Mr.
Chairman, may I have 1 extra minute so that Ms. Weiss can also
answer this question. I would like to get a survey from all.
Mr. Bilirakis. Without objection, but your 27 seconds over
already. Without objection, it is----
Ms. Capps. Thirty seconds more.
Ms. Weiss. Of course there is a critical difference between
institutions and individuals in this matter, and that is
because when institutions claim rights of conscience they are
very likely to be imposing their religious tenets on people who
do not share them. That is to say there are conscientious
rights on both--rights of conscience on both sides of the
ledger. When an individual patient makes a decision not to have
any more children, she is making a decision in which she is
standing on moral ground. It is a decision about what is best
for her and her family and her children. And that means that
she has rights that need to be protected on that side of the
ledger.
Ms. Capps. Thank you. Thank you, Mr. Chairman.
Mr. Bilirakis. I thank the gentlelady. Mr. Pitts?
Mr. Pitts. Thank you. Ms. Weiss, you mentioned in your
testimony about Sophie Smith. Would you, for the record,
provide more information to the committee on this case that you
mention in your testimony, the blood clot?
Ms. Weiss. Yes, Representative. What information would you
like?
Mr. Pitts. Well, just anything you have on it: The name of
the hospital that you are talking about.
Ms. Weiss. The hospital was a sectarian hospital in
Nebraska, and I have not mentioned its name in testimony
because the physician in question, the one who called me, is
fearful of violence and does not want to be revealed and
continues to practice there. So I have not provided identifying
information for that reason.
Mr. Pitts. Okay.
Ms. Weiss. I apologize. That is often a problem in
providing identifying details in this field because of the
ongoing problem of violence.
Mr. Pitts. In your line of reasoning, as I was seeking to
follow it, you seem to say that any entity that takes public
money can't have a conscience. A couple of days ago, an article
appeared in the Burlington County Times about the purchase of a
hospital in Burlington County by Our Lady of Lordes Health Care
Services. And the article indicated that the ACLU in New Jersey
had been challenging the purchase. The articles says that the
ACLU is insisting that our Lady of Lordes, ``add a separate
building on the Rancocas Hospital campus where women could go
for abortions.'' Is it the position of the ACLU that Catholic
hospitals, that our Lady of Lordes, should be required by law
to build a separate clinic for abortions upon their property?
Ms. Weiss. Well, that is a very interesting case,
Representative Pitts. That is a case in which a Catholic
facility is acquiring or merging with a formally secular
facility and trying to ensure that the new merged entity lives
by the ethical and religious directives for Catholic health
care services that govern Catholic facilities, thereby
preventing abortions, sterilization, contraception, fertility
treatments, a wide array of reproductive health care.
But the facility that it is buying was itself created by a
charitable trust, and in that charitable trust there was--the
intent of the donor was expressed to provide a wide array of
health services to the low-income community in the relevant
city in New Jersey. Now, the question in that case was does the
conscience, the moral stance of the original donor to the
secular institution have also rights or is it only that the
Catholic facility has rights of conscience? And the answer is
of course that is not the case. Both facilities were created by
charitable trusts, both facilities have consciences, and the
question is how do we--can they merge, is there a way that they
can affiliate and recognize the conscientious rights of both
facilities? That is what is at issue in that case, that is why
there is an ongoing debate about how to preserve the intent of
the founders of the formally secular facility. That is why you
are seeing that in the newspaper, sir.
Mr. Pitts. Thank you. I wish I could continue with you.
Maybe we will have a second round, I don't know.
Professor Wardle, do you understand this bill to cover
cases of emergency contraception that some providers may see as
abortifacient? Does it expand or change the current legal
definition of abortion anyway?
Mr. Wardle. I don't think it changes the current definition
of abortion in any way. But let me point out two things here.
The critical issue is who decides what my rights of conscience
are? Is it going to be for the ACLU to dictate the boundaries
of my conscience? And if my definition of what is conscience
and what is moral disagrees with them, can they force me to do
their will? Can they deny me the opportunity to practice, if I
were a doctor, practice medicine; if I were a health care
administrator, to administer medicine? The question is who
defines conscience? I am pleased to let Ms. Weiss define her
own conscience but not to impose that on me. Likewise, if
patients want to have medical services that I would not perform
as a doctor, let Ms. Weiss direct them in the direction where
they can get those services.
You see her definition of abortion is as an entitlement, a
definition that has been repudiated at least five times by the
United States Supreme Court, but she and the ACLU don't accept
it. They believe that abortion is not just a right of private
choice but it is an entitlement that has to be facilitated and
you have to facilitate it. The distinction between public and
private is specious in our economy that is so wholly
publicized. The government takes my money then gives it back to
me in manner of a student loan. Does that now make me as a
student a public actor? Gives it back to me in the form of a
license to practice medicine or a certificate of need to
perform medical services. Does that make me a public actor? The
public/private distinction is a specious distinction.
Mr. Pitts. I see that I am out of time.
Mr. Bilirakis. Your time is expired. Would you gentlemen
like to have an additional minute?
Mr. Pitts. Yes, sir, Mr. Chairman, if you don't mind.
Mr. Bilirakis. Without objection----
Mr. Pitts. I will ask Professor Wardle, based on your
research, do you recognize a concerted movement or an effort to
require all hospitals to provide abortions? You made some
reference to that. I would like you to expand.
Mr. Wardle. Thank you, Mr. Pitts. Yes, and that is how the
issue has changed. I have seen a dramatic change in 30 years. I
have studied this for 30 years and written about it for nearly
a quarter of a century, and you have seen a dramatic change in
the dialog and the expectation from privacy. Just let us be
able to choose this. We are not asking to force anybody to do
anything. Just let us be able to choose to. Now, you have to
facilitate, you have to perform, you have to pay.
Essentially, the position that has been articulated by Ms.
Weiss this morning is that no Catholic hospital, and I would
say not just Catholic but other religious affiliated hospitals
and not just religious affiliated hospitals. We have here a
witness from a sectarian hospital that asserted by democratic
process a set of principles, right of conscience, forcing them
to take a position. The position that is taken today is if you
are a hospital that would decline to perform abortions, you
cannot expand, you cannot merge, you cannot acquire, you cannot
grow unless you are willing to do abortion.
Mr. Bilirakis. The gentleman's time has expired. Mr.
Strickland to inquire.
Mr. Strickland. Thank you, Mr. Chairman. Mr. Wardle, I have
a question in regard to your most recent comment that you have
observed something over a 20- or 25-year period, and people
have gone from just wanting to be able to make the choice to
have that as some kind of right that could be imposed upon
others. But I am just curious, do you agree with the first part
of that? Do you believe that the person should be able to make
a personal choice?
Mr. Wardle. I believe that in some cases that is absolutely
right. I think the Supreme Court could have reached the
decision it did in Roe v. Wade without the absurd toddering
doctrine that it put underneath it. In the case of rape,
certainly, in the incest, in the case of life or a health
threat.
Mr. Strickland. You know, this really puzzles me because
when we talk about the morality of abortion, when we talk about
the taking of an innocent human life, then to say in case of
rape, in case of incest. It seems to me that there is an
inconsistency. If it is an innocent human life, then the child
conceived as a result of rape or incest is also an innocent
human life. Now, I believe in the right of a woman to choose,
but I am just pointing out what I think is a glaring
inconsistency among those who make these moral distinctions and
still question the validity of a conscience of an individual
who may have a different point of view.
Mr. Wardle. Mr. Representative, I believe the question is,
though, and I respect your point of view and the point you make
is a very thoughtful and thought-provoking one, but is it for
you to tell me what my conscience is or to tell Ms. Vosburgh
what her conscience is or to tell Ms. Weiss?
Mr. Strickland. No, it isn't, and that is why--this causes
conflict within me, because I think what we are talking about
here is an area that for thoughtful people results in internal
conflict.
You said something about the mayor of New York. Would you,
for my sake, repeat what you said that his comment was when
someone was found to be pregnant?
Mr. Wardle. I am quoting from news reports. ``These media
mogul reportedly once told a pregnant employee to, `kill it,
kill it.' '' I would add, as I do in my written testimony,
Bloomberg has denied making the comment, but it was cited in
legal papers of Sekiko Sakai Garrison, a former Bloomberg news
staffer, who brought one of three publicized sex harassment
cases----
Mr. Strickland. Yes, sir.
Mr. Wardle. [continuing] against him or his company.
Mr. Strickland. I just think it would have been more fair
of you to have relayed his denial at the time when you relayed
what supposedly was his comment. I don't know Mr. Bloomberg,
have no affiliation or any particular sympathy for him, but I
think to put out such a statement without also giving us his
denial was a little unfair to him.
Mr. Wardle. Well, I did give it to you in writing, and I
just read it to complete the record, sir.
Mr. Strickland. Well, thank you for that. Ms. Vosburgh,
this may have been discussed when I wasn't here, and if it is,
I apologize. But does your hospital believe that it should
perform an abortion under any circumstances?
Ms. Vosburgh. Yes, rape, incest, life of the mother. It is
in the policy that they every year rewrite, which lines up with
Federal law too, with title X.
Mr. Strickland. I was just unsure because I was not here.
Ms. Vosburgh. Yes. And while I am on here, I would like to
answer Mrs. Capps. She said since we are a hospital, I am on
the board--Okay, sorry.
Mr. Strickland. Yes. I am sorry, we only have 5 minutes. I
think Ms. Capps may have--I hope the chairman will give us a
second round here.
Mr. Bilirakis. I am not contemplating doing that. We have
another panel to go yet.
Mr. Strickland. Okay. Well, I am----
Ms. Vosburgh. I would have been finished by now anyway.
Well, the thing is we are elected----
Mr. Strickland. Well, I will respect your right to----
Ms. Vosburgh. Okay. Well, we are elected. We are elected
from the community, from our community. We are elected, and we
elect people onto the operating board which make that decision,
and the community, the body of the community does not want--
they do not want abortions there. Abortions to the majority of
the community there, it is an abhorrent thing. It is the taking
of human life. Very tiny, yes, but it is human life. That is
what fetus means, little one. And it is killing them.
Mr. Strickland. Can I interrupt here?
Ms. Vosburgh. Yes.
Mr. Strickland. Because are you expressing a religious
belief----
Ms. Vosburgh. No.
Mr. Strickland. [continuing] when you say that or are you
expressing a scientific belief? And if it is a scientific
belief, then it is not a matter of conscience, it is a matter
of judgment, it seems to me.
Ms. Vosburgh. It is a matter of humanity. I mean we need to
protect all of us.
Mr. Strickland. I do think the Constitution does grant
legitimate exceptions for a lot of things based on religious
belief. It troubles me that someone could just--some group of
individuals could just decide that this is a moral issue devoid
of religious theological context and then claim the kind of
protections that I think are only available to those who use a
religious test for their particular beliefs.
Mr. Bilirakis. Without objection, the gentleman is granted
an additional minute.
Mr. Strickland. You are very kind.
Mr. Bilirakis. Took you by surprise.
Mr. Strickland. You are very kind, Mr. Chairman. I will not
accept that gracious invitation. Thank you so much.
Mr. Bilirakis. Mr. Akin, did you have maybe a quick
question you might raise to this panel? You are not a member of
the committee, but I know the other members would not mind if
you raised a particular question.
Mr. Akin. I appreciate the offer.
Mr. Bilirakis. All right. Well, we customarily--first of
all, thank you. We customarily present questions in writing to
the panelists and we will ask you to respond to those in a
timely fashion. What is timely? Well, anyhow, 2 or 3 weeks we
would hope at the most. So I hope you won't mind receiving
those questions and will respond. And we can only thank you.
Ms. Weiss came from New York, Mr. Wardle----
Ms. Capps. Mr. Chairman?
Mr. Bilirakis. [continuing] from Utah and Ms. Vosburgh from
Alaska, so you have come quite a long distance, particularly
two of you. Yes, ma'am?
Ms. Capps. May I suggest that we offer a second round or
request that you consider it?
Mr. Bilirakis. I would rather not because we have a second
panel who is just sitting here, and it is the prerogative of
the Chair, as I understand it, and I hope you don't mind, but I
would rather not do that. All right. You are excused. Thank you
so very much.
Panel II consists of Ms. Addia--is that correct?
Ms. Wuchner. Addia Wuchner, yes.
Mr. Bilirakis. Addia, yes, I am sorry. Ms. Wuchner, Dr.
Renee Jenkins, on behalf of the American Academy of Pediatrics,
and Mr. John Heisler who is going to be better introduced by I
suppose it is his congressman, Mr. Manzullo who has asked--Mr.
Manzullo asked for the right to introduce Mr. Heisler. Please
proceed, Don.
Mr. Manzullo. Thank you, Mr. Chairman. I have to
introduce--it is my pleasure to introduce my constituent and
then I have to run to catch an airplane. Thank you for giving
me the opportunity to introduce my constituent, John Heisler.
Mr. Heisler is a member of the McHenry County Board. He spent
the past several years as the county board's liaison to the
Board of Health. Our paths crossed in 1997 when one of the
communities in McHenry County, Crystal Lake, was devastated by
the news that a 13-year-old girl had been repeatedly sexually
assaulted by her 37-year-old junior high school teacher. The
teacher eventually was sentenced to 10 years in prison.
But the following the arrest was even more shocking, the
teacher had used the title X Federal Family Planning Program at
the McHenry County Health Department to shield his crime, and
taxpayers were footing the bill. Tired of using condoms, the
teacher brought the young girl to a place where he knew she
could get birth control drugs without anybody finding out, the
federally funded county health department. The teacher knew
that title X rules prohibited clinics from notifying parents
when issuing birth control drugs to young girls.
When the girl arrived, a clinic worker injected her with a
powerful birth control drug, Depo-Provera, a hormonal drug that
possesses severe side effects, including excessive bleeding and
bone loss. Eighteen months later into the crime, the little
girl broke down, told her parents, she underwent intensive
therapy and battled anorexia.
The whole argument for providing young girls birth control
drugs behind their parents' back is cloaked in the double
standards, which Mr. Heisler will bring out. But as a result of
what happened in McHenry County, we, in 1998, approved my
parental notification bill. The Senate never acted on the
provision, however, and it died. But we did get legislation
that passed, that became law, that title X clinics are not
following, and that is that whenever they have reason to
believe that a minor is under the age of consent, these title X
agencies have the statutory duty to follow local State laws
requiring notification to authorities that a child is indeed
being raped. That was the two-part prong of the bill that we
got passed. It is quite a story that Mr. Heisler has to tell.
Again, I appreciate the opportunity to introduce him and I
would ask to be excused.
Mr. Bilirakis. Thank you.
Mr. Akin. Thank you.
Mr. Bilirakis. The Chair excuses the gentleman.
Ms. Wuchner?
STATEMENTS OF ADDIA WUCHNER, NORTHERN KENTUCKY INDEPENDENT
HEALTH DISTRICT; RENEE S. JENKINS, ON BEHALF OF THE AMERICAN
ACADEMY OF PEDIATRICS; AND JOHN A. HEISLER, COUNTY BOARD,
McHENRY COUNTY, ILLINOIS
Ms. Wuchner. Thank you. Mr. Chairman and members of the
Committee, I appreciate this opportunity to be here today to
discuss with you the issue of a parent's right to know,
especially as it pertains to medical treatment of minor
children without their parents' knowledge or notification.
I am a mother of three, a registered nurse, with a
background in women's health. I currently serve on the board of
directors for the Northern Kentucky Independent District Health
Department and Chair the Community on Human Sexuality
Education.
Most parents would be shocked to learn that their teenage
daughters may walk into one any of the title X federally funded
clinics and obtain free birth control, including injectables
such as Depo-Provera, emergency contraceptives, the morning
after pill, without the knowledge or notification of their
parents. They would be shocked because, for centuries, all
sorts of rights flowing from the parent-child relationship have
been acknowledged and protected by law, among them decisions
concerning custody, the education and the medical treatment of
their children. Yet today, when it comes to sex and the
prevention and treatment of pregnancy and the prevention and
treatment of sexually transmitted diseases, is seems neither
mother nor father are trusted to know what is best.
The Northern Kentucky Board recently passed a motion to
gather community input and review title X and Family Planning
Services. This review led them to a vote. But the review led to
much more. It led to the highlight of the many strings attached
to title X which we will discuss today. For example, Section
8.7 states, ``Title X projects many not require the written
consent of parents or guardians for provisions of services to
minors, nor can the project notify parents or guardians before
or after a minor has requested and received title X-funded
family planning services.''
Section 8.6 states, ``Title X projects must offer women and
minors with a diagnosis of pregnancy, counseling, which is to
include pregnancy termination along with information on
prenatal care delivery, infant care and foster care.''
We found title X policies contradicted our health board's
commitment in 2000 to under title V funding to fund a model of
character-based abstinence education that included the
importance of parental communication. It was apparent to most
of us on the board that title X was problematic and would
remain so, as it currently exists, because it erodes the
parent's right and the parental/child relationship, and it
blocks their right to monitor their children's health. It was
resolved by the majority of board members that on a local level
this may not be the place to deal with this issue of parental
notification, but rather it should be addressed at State and at
national legislative levels.
Mr. Chairman, committee members, one-third of approximately
5 million women served by the title X programs are U.S.
teenagers. In Northern Kentucky, females under the age of 18
represent 24 percent of those came in with parental knowledge,
but 75 percent of the young women seen in our clinics are seen
without parental notification. The clinics see and treat girls
as young as 12 years old. I would like to share with you the
day-to-day realities of title X.
Just this year, in one of our Northern Kentucky clinics, a
14-year-old girl came in with her boyfriend's mother. Upon the
initial interview, she denied being sexually active, but it was
important to her that her boyfriend and his mother like her.
The boyfriend's mother wanted the girl to be put on the birth
control so that she would not become pregnant when her son had
sex with her. Please keep in mind the girl was 14 years old.
The adult who brought her into the clinic was not her mother.
Following title X guidelines, the 14-year-old's mother could
not be notified.
Or what about the 12-year-old who had sex last Thanksgiving
holiday and stated she didn't know why she did, she wanted the
boy to like her and not get mad. What about her parents? She is
only 12 years old. Is putting her on the pill the Government's
solution? Perhaps we can prevent her from becoming pregnant,
but she will also need to use a condom, and that will only
prevent some of the sexually transmitted diseases that she will
be exposed to. She is 12 and routinely forgets her homework
assignments. A 14-year-old girl, recently seen in a local
emergency room with a sexually transmitted infection, gave a
medical history of already having five different sexual
partners.
Title X specifies that a minor must be treated as an adult
when seeking family planning services, yet these are really
children at risk, children in engaging in adult behaviors.
These high-risk behaviors do not need the cloak of government-
funded clinics providing a pill to replace behavioral
interventions but rather a true model of health would provide
interventions when necessary that assists parents in building a
bridge rather than a wedge in the parental and child
relationship.
It is in the context of the parent/child relationship that
the norms and values of the family are transmitted. A minor
cannot legally sign a document or a contract. The school nurse
cannot give her an aspirin. She cannot have her ears pierced at
the mall without her parents' okay. Yet title X allows this
minor to decide and receive family planning services and
medications without her parents' knowledge. This means that
your daughter, your granddaughters or any minor female can be
put on hormonal medications or given an emergency birth control
without notification of her parents or guardians, those most
knowledgeable of her health and family health history.
Mr. Bilirakis. Please summarize.
Ms. Wuchner. It is irresponsible to move in this direction.
Mr. Chairman and members of the committee, a common sense
wisdom and sound medical practice would agree that parents have
the right to monitor their child's health care and well being.
As Government and as a Nation, we must support the first
building blocks of our society, the family, by restoring a
parent's right to know and monitor their child's health and
their well being. Thank you.
[The prepared statement of Addia Wuchner follows:]
Prepared Statement of Addia Wuchner, Board of Directors, Northern
Kentucky Independent Health District
Mr. Chairman and Members of the Committee: I appreciate the
opportunity to be here today to discuss the issues of a ``parent's
right to know'', especially where it pertains to medications or medical
treatment and care, in this case, adolescent reproductive health and
the distribution of hormonal birth control agents and devices to minors
without parental knowledge or notification.
I am a registered nurse with a background in women's health. I
currently serve on the Board of Directors of the Northern Kentucky
Independent District Health Department and Chair the Human Sexual
Education Committee. I was appointed to the Board and serve as the
designee of Judge Executive Gary Moore of Boone County, Kentucky. The
Health District provides services for a four county region.
Most parents would be shocked to learn that their teenage daughter
may walk into lkone of these federally funded clinics and obtain free
contraceptives, including injectables such as Depo-Provera, and
emergency contraceptives (the morning after pill) without their
knowledge or notification.
They would be shocked because, for centuries, all sorts of rights
flowing from the parent-child relationship have been acknowledged and
protected by law, among them decisions concerning custody, education
and medical care. Yet today, when it comes to sex, the prevention and
``treatment'' of pregnancy, and the prevention and treatment of
sexually transmitted diseases, the federal government tells us that
neither Mother nor Father knows best.
The rights of parents to address and provide for their children's
medical care has been undermined by controversial guidelines
transforming parent's right to know into a privacy issue.
Children need two decades, more or less, of love, education,
training, discipline and experience to be able to function
independently of parents and make sound decisions concerning their
lives. Throughout this formative period, parents have the right and
duty to guide their children well. This last proposition should hardly
be controversial. Ask any mother and father who've had to provide a
school nurse with written permission just to see that their child gets
a midday dose of Tylenol .
Background on Recent Title X Federal Funding Issues and Northern
Kentucky Independent District Health Department:
Earlier this year the Board passed a motion to gather community
input and review the policies of Title X funded Family Planning
Services and the medical and scientific information available on all
FDA approved contraceptives and birth control methods currently
provided under the Family Planning Services.
A public caucus was held on the issues of the ``Impact of Title X''
on May 9, 2002, and on June 19, 2002 the Board met to vote on whether
we would continue to accept or reject the Federal Title X funding of
Family Planning Services.
As the issues were manipulated under the microscope of the press,
political, religious, ethical and moral debates, and at great length,
they became emotionally charged with accusations that some Board
members do not care about poor women. The actual facts of why the Board
was taking a look at Title X funded Family Planning and the birth
control medications and devices that are dispensed through the program
became, at times, publicly clouded. Our responsibility to the Northern
Kentucky community impelled us to ask several questions: What is Title
X's impact on health of women and adolescent females? What are the
ramifications of Title X funding? What benefits could be attained by
discontinuing the status quo and promoting women's health, absent of
Title X?
While researching the medical and scientific information on birth
control methods and devices, our Title X review also highlighted the
many ``strings'' attached to accepting Title X funding from the federal
government. These requirements (strings) are laid out in the Program
Guidelines for Project Grants for Family Planning Services set forth by
the United States Department of Health and Human Services, Office of
Public Health and Population Control.
The Program guide begins by defining the wording of the document
and just what is meant when the words ``must'' and ``may'' are used.
Section 1.1 Definitions states, ``Throughout this document the word
``must'' indicates mandatory program policy''.
For example:
Title X projects may not require the written consent of
parents or guardians for provision of services to minors. Nor
can the project notify parents or guardians before or after a
minor has requested or received Title X funded family planning
services. (reference Section 8.7 Program Guidelines for Project
Grants for Family Planning Services)
Title X projects must offer women and minors with a pregnancy
diagnosis, counseling which is to include pregnancy termination
along with information on prenatal care and delivery, infant
care, foster care . . . (Reference Section 8.6 Program
Guidelines for Project Grants for Family Planning Services)
board actions.
Title X Blocks parents' right and responsibility to monitor their
children's health
In 2000, the Northern Kentucky Independent District Health Board
took a fresh look at the efficacy and coherence of its adolescent
sexuality programs and chose to support Character Based Abstinence
Education. The Board was farsighted in recognizing both the power of an
abstinence focus and that the 20th-century model of contraceptive
education was ineffective. However, Title X remains a product of its
times, and its requirement to provide contraceptive services to
adolescents without parental notification contradicted our Health
Board's year 2000 stated intention to focus on character based
abstinence education, including parental communication.
The fact is that Title X blocks parents' rights and
responsibilities to monitor their children's health. When minors seek
contraceptive information, they must be informed about all birth
control methods, treated for medical conditions and sexually
transmitted infections and have medication prescribed and dispensed to
them with out their parents' knowledge or consent. This became an issue
that greatly disturbed Board Members and the community.
Board members researched, studied, pondered, and sought public
input. We found ourselves constrained by the fact that you could not
reject part of Title X and still receive funding for services. We were
bound to the structure and guidelines set forth by the Programs
Guidelines of the Project. On June 19, the twenty-seven members present
at the Board meeting voted 14 to 13, with the Chair casting a tie
breaking vote, to reject a motion that would have discontinued the
Department's acceptance of close to $220,000 in Title X and related
funding.
Two issues/concerns were prevalent in discussions with Board
members. First, there was concern that if we rejected the funding there
would not be another service in place at this time to adequately
provide family planning services to low income women. Second, and of
most concern to the majority of the Board members, was the treatment of
children and adolescents without parental knowledge.
The Judge Executive, Steve Pendery from Campbell County, resolved
that the local level may not be the place to deal with the issue of
parental notification but, rather, it should be addressed at a State
and National Legislative level. While Judge Pendery felt he needed to
vote to retain the Title X funding for practical reasons, in the press
the next morning Judge Pendery concluded that the Board is not as
divided as it seems; ``We're a lot closer on this issue than the vote
makes it sound.''
I voted with the support of my Judge Executive, Gary Moore, to
discontinue the Health Department's collaboration with Title X funding
and to look for other sources of funding to support a model of Family
Planning Services not restricted by the constraints of Title X. On June
20, Judge Pendery's designee sent a letter to Board members requesting
that we move forward with letters to all legislators in Kentucky asking
for their help in changing the Title X requirements regarding girls
under the age of 18 receiving birth control without their parents'
knowledge.
It was apparent to most of us on the Board working on this issue
that Title X would remain problematic as it currently exists because it
erodes parental rights and the parent-child relationship.
Title X and Parent's Right to Know
Mr. Chairman and Members, I know you are well aware that Title X of
the Public Health Service Act was established as a federal program in
1970. For many years it has offered low-income women certain
``reproductive health'' services, including family planning as well as
``non-directive'' pregnancy counseling and referrals on all
``options,'' including termination of pregnancy.
One-third of the approximately five million women served by the
program are teenagers. Unmarried teens may qualify for free services
regardless of their parents' income, knowledge of or consent to care.
Currently, a teenager may walk into any Title X clinic and receive free
prescription contraceptives, including injectables, i.e., Depo-Provera,
or emergency contraceptives (the morning after pill) without her
parents' knowledge or consent. Congressmen, one of these young girls
may easily be your daughter or granddaughter.
To date, our Northern Kentucky clinics' statistics show that of the
clients seen and treated this year, looking at numbers for females
under the age of 18, only 24% came in with parental knowledge or
consent. Approximately 75% of the young women seen in our clinics are
seen without parental notification. The clinics have seen and treated
girls as young as 12 years old.
Example Case:
Just this year, in one of our Northern Kentucky clinics, a 14-year-
old girl came in with her boyfriend's mother. Upon initial interview,
she denied being sexually active at that time, but it was important to
her that her boyfriend and his mother like her. The boyfriend's mother
wanted the girl put on some form of birth control so she would not
become pregnant when her son had sex with her. Please keep in mind the
girl was 14 years old. The adult who brought her in to the clinic was
not her mother. The 14-year-olds' mother was not notified. This is the
reality of the strings attached to Title X.
Under the auspices of Title X, providers of women's and adolescent
health services have fallen into disaster control mode, leaving
proactive mediation and behavioral interventions on the back burner. We
abet unhealthy practices by offering birth control to sexually active
teens, especially young women who are the population at the greatest
risk for Human Papillomavirus (HPV) and other STDs. These behaviors of
young people need parental awareness, so that they may support and give
guidance and dialog that respects the norms and values of the family. A
true health model would then provide intervention when necessary that
assists parents in parenting, building a bridge rather than a wedge in
the parent-child relationship. These high risk behaviors do not need
the cloak of government funded clinics providing a ``pill'' to replace
behavior interventions, rather the situation calls for more support for
parental communication.
Title X specifies that a minor must be treated as an adult when
seeking family planning services, yet these are really children
engaging in adult behaviors.
The issue remains that a minor cannot legally sign a contract; the
school nurse cannot give her an aspirin; she cannot have her ears
pierced in the mall without her parent's OK; yet Title X allows a minor
to decide and receive family planning services and FDA approved methods
of birth control without a parent's knowledge. Title X is anti-parental
rights.
conclusion
Title X means your daughter, your granddaughter, or any minor
female, can be put on hormonal medications or be given an emergency
contraceptive (morning after pill), without those most knowledgeable--
her parents or guardians--of her health and family health history being
able to advise her regarding known risk factors that, in combination
with contraindications or adverse effects, could lead to serious future
health complications. While the clinician must ask her if she knows her
own medical and family medical history (mandatory), it is irresponsible
and dangerous to assume that a 13 or 15-year old would have a complete
knowledge of such information. Most children are unaware of their
family risk factors. It is also unethical for a medical professional to
treat a patient and prescribe or dispense medication without a
completed personal and family medical history.
Overall, lack of parental notification in the Title X program are
affronts to parents' rightful role as the primary educators of their
children. Government agencies and counselors cannot replace and should
not interfere with the rights and responsibilities of parents,
particularly in sensitive matters dealing with human sexuality.
Government should protect the role of loving and supportive parents,
yet make it possible to terminate the rights of parents who abuse the
trust and privilege of being a parent.
Parents must be trusted to monitor their minor children's health
and to protect them from the consequences of promiscuous behavior.
Mr. Chairman and Members of the Committee, common sense, wisdom,
and sound medical practice would agree that parents have the right to
monitor and care for the health and welfare of their children. I
implore you to take the necessary steps to reverse the erosion of
parental rights and lift the blanket of confidentiality currently
mandated under Title X. This completes my prepared statement. Thank you
again for this opportunity to testify on the issue of a Parent's Right
to Know. I would be happy to respond to any questions you may have at
this time.
Mr. Bilirakis. Thank you very much.
Dr. Jenkins?
STATEMENT OF RENEE S. JENKINS
Ms. Jenkins. Good afternoon, Mr. Chairman, members of the
committee. I am Dr. Renee Jenkins--is this on? Okay. Start
again. Good afternoon. Mr. Chairman, members of the committee.
I am Dr. Renee Jenkins here in Washington who has taken care of
adolescents for more than 20 years. I am also professor and
Chair of the Department of Pediatrics and Child Health at
Howard University College of Medicine. I am speaking today on
behalf of the American Academy of Pediatrics. My statement also
is endorsed and supported by the American College of
Obstetricians and Gynecologists, the American Academy of Family
Physicians and the Society for Adolescent Medicine.
Most importantly, I too am a parent who shares the same
worries about my daughter's health as other parents. My
testimony today will cover three key points: One, the
importance of parental involvement; two, the importance of
confidentiality and access to health care; and, three, concerns
about H.R. 4783, the States and Parental Rights Improvement Act
of 2002.
Under parental involvement, as clinicians we firmly believe
that parents should be involved in and responsible for assuring
medical care for our children. Family communication about
health care decisions is the desired goal and the health care
professions are able to assist in this effort. We strongly
encourage and hope that adolescents communicate with and
involve their parents and other trusts adults in important
health care decisions. These health care decisions include
issues of substance abuse, mental health and reproductive
health.
Providing confidential health care services does not
preclude working toward the goal of family communication and
involvement of parents, as is sometimes inferred. To the
contrary, research has shown that adolescents often voluntarily
share information with their parents. Clinical experience
confirms that this often occurs after they consult privately
with their health care provider. My role as a pediatrician is
to support, encourage, strengthen and enhance parental
communication and involvement in adolescent decisions without
compromising the ethics and integrity of my relationship with
adolescent patients.
While there may be circumstances when it is necessary and
appropriate for the health care provider to inform parents or
guardians of certain health problems facing a minor, for
example, when there is a risk of imminent harm, there is a
critical need to ensure that an adolescent's health information
is protected. Concern about confidentiality is one of the
primary reasons that young people delay seeking health care,
including health care for sensitive health issues. While
parental involvement is both very desirable and should be
encouraged, it may not be feasible.
Legislated mandatory parental consent or notification will
certainly reduce the likelihood that young people will seek
timely treatment for sensitive health issues. Adolescents will
rarely admit to the use of the alcohol and drugs in front of
their parent. The confidential interview gives them an
opportunity to speak to a professional that can help them early
and detect underlying depression when it is present and avoid
the risk of suicide, for example, and other negative outcomes.
When young people have symptoms of sexually transmitted
diseases, they often delay going for treatment so long that
complications that would normally be avoided occur, sometimes
requiring hospitalization.
Having access to confidential care also provides an access
point for adolescents to receive other health care services.
These include things like cholesterol screening, immunizations,
blood pressure monitoring or pelvic exams, services that are
critical to the adolescent's health but could be overlooked if
the adolescent had not visited a doctor. Ensuring the
confidentiality in the delivery of health care services
provides a necessary gateway that allows adolescents to simply
get in the door so that we as health care professionals can
help guide them in appropriate directions that includes
parental involvement. Without confidentiality, early care and
treatment is too often preempted.
Concerns about H.R. 4783, for reasons outlined in greater
detail in our testimony, we oppose this legislation. We believe
that this legislation will undermine the Federal guarantee of
confidentiality for health care services under the title X
program and other child and adolescent health programs. H.R.
4783 would create barriers to health care, especially for low-
income young people who need to obtain affordable prescription
drugs, including prescriptive contraceptives through federally
supported health clinics. The barrier would also impact health
care services outside the scope of reproductive health.
In conclusion, as a physician, a teacher and most of all as
a parent who is concerned about the quality and safety of
health care for my daughter as well as for the quality and
safety of health care for all adolescents in this country, I
urge you to reject attempts to restrict adolescents' access to
confidential health care services, including prescription drugs
or devices. Mr. Chairman, thank you for the opportunity to
testify before this committee today, and I will be happy when
the time comes to take any questions. Thank you.
[The prepared statement of Renee S. Jenkins follows:]
Prepared Statement of Renee Jenkins, Professor and Chair, Department of
Pediatrics and Child Health, Howard University College of Medicine on
behalf of the American Academy of Pediatrics
Good afternoon. Mr. Chairman, members of the Committee, I am Dr.
Renee Jenkins, a practicing pediatrician who has taken care of
adolescents for more than 20 years. I am also professor and chairman,
Department of Pediatrics and Child Health, at Howard University College
of Medicine. I am speaking today on behalf of the American Academy of
Pediatrics (AAP), an organization representing 57,000 pediatricians
throughout the nation. In addition, my comments are endorsed and
supported by the American College of Obstetricians and Gynecologists,
the American Academy of Family Physicians and the Society for
Adolescent Medicine.
Each of the organizations supportive of this testimony is fully
committed to the health and well-being of adolescents. Specifically,
the American College of Obstetricians and Gynecologists is an
organization representing 44,000 obstetricians-gynecologists dedicated
to health for women of all ages; the American Academy of Family
Physicians is one of the largest national medical organizations,
representing more than 93,500 family physicians, family practice
residents and medical students; and the Society for Adolescent Medicine
includes more than 1,400 physicians, nurses, psychologists, social
workers, nutritionists and others involved in service delivery,
teaching or research on the health and welfare of adolescents. In
total, we represent more than 196,000 medical professionals.
It is from these perspectives, and perhaps most importantly as a
parent, that I am here today to express our views concerning the issue
of parental consent or notification for minors seeking health care
services, including prescription drugs or devices. My comments today
will also address H.R. 4783, the ``State's and Parental Rights
Improvement Act of 2002,'' which we believe would undermine
confidential health care services for adolescents. I would like to
thank the Committee for this opportunity to present this statement as
Congress continues to debate this issue of significance to adolescent
health care.
overview
The American Academy of Pediatrics and the endorsing organizations
firmly believe that parents should be involved in and responsible for
assuring medical care for our children. Moreover, we would agree that
as parents we ordinarily act in the best interests of our children and
that minors benefit from our advice and the emotional support we
provide as parents. We strongly encourage and hope that adolescents
communicate with and involve their parents and/or other trusted adults
in important health care decisions affecting their lives. These
discussions include such issues as substance abuse, mental health and
pregnancy and pregnancy termination. We know and research confirms that
most adolescents do so voluntarily. This is predicated not by laws but
on the quality of their relationships. By its very nature family
communication is a family responsibility. Adolescents who live in warm,
loving, caring environments, who feel supported by their parents, will
in most instances communicate with their parents in a crisis including
the disclosure of a pregnancy or other urgent health concerns. However,
even adolescents reared in the best of household environments will at
times be unwilling to make full disclosure of their behaviors because
they do not wish to disappoint and hurt loving and caring parents.
Family communication about health care decisions is the desired
goal, and health care professionals are able to assist in this effort.
Allowing confidentiality of care for adolescents does not preclude the
involvement of parents, as it is sometimes presumed. To the contrary,
research has shown that adolescents often voluntarily share information
with their parents and clinical experience confirms that this often
occurs after they consult privately with their health care provider.
Ensuring confidential care is about striking an important balance
among parents, providers and the adolescent patient. While there may be
circumstances when it is necessary and appropriate for the health care
provider to inform parents or guardians of certain health problems
facing a minor (e.g., life-threatening emergency) there is a critical
need to ensure that an adolescent's health information is protected.
Providing confidential care does not preclude working toward the goal
of family communication.
Pediatricians, parents and policy makers know well the number of
adolescents that are beginning to use illicit drugs, alcohol and become
sexually active. What may start as experimentation with friends often
leads to long term dependencies, accidents, injuries, sexually
transmitted disease and a myriad of other physical and behavioral
issues. In the infrequent cases where communication between adolescents
and their parents can not be facilitated, many of these negative
outcomes can be avoided if the adolescent has access to confidential
health care.
My role as a pediatrician is to support, encourage, strengthen and
enhance parental communication and involvement in adolescent decisions
without compromising the ethics and integrity of my relationship with
adolescent patients. Health professionals have an obligation to provide
the best possible care to respond to the needs of their adolescent
patients. This care should, at a minimum, include mental health,
substance abuse, and services for other psychosocial problems including
therapy, crisis management, day treatment, and residential care;
comprehensive reproductive health services, such as sexuality
education, counseling, mental health assessment; diagnosis and
treatment regarding pubertal development; access to the full range of
family planning services; pregnancy-related care; prenatal and delivery
care; diagnosis and treatment of sexually transmitted diseases and
referrals for other health and social services.
We understand that pending legislation, the ``State's and Parental
Rights Improvement Act of 2002'' (H.R. 4783), is, in part, the basis
for this discussion today. This legislation would allow states to
require parental consent or notification for the purpose of dispensing
prescription drugs or devices to minors under federal health care
programs, such as the Title X Family Planning program and the Title V
Maternal and Child Health Block Grant.
For reasons outlined below, we believe that this legislation would
undermine the federal guarantee of confidentiality for health care
services under the Title X program and other child and adolescent
health programs, and is inconsistent with the policies of the endorsing
organizations. In addition, this legislation could have a chilling
effect on state programs that may opt to follow the federal
recommendation.
The stated intent of those who support mandatory parental consent
or notification legislation, of the type that H.R. 4783 would allow
states to adopt, is that it enhances family communication as well as
parental involvement and responsibility. However, the evidence does not
support that these laws have that desired effect. To the contrary,
there is evidence that these laws may have an adverse impact on some
families and that it increases the risk of medical and psychological
harm to adolescents. According to the AAP, ``[i]nvoluntary parental
notification can precipitate a family crisis characterized by severe
parental anger and rejection of the minor and her partner. One third of
minors who do not inform parents already have experienced family
violence and fear it will recur. Research on abusive and dysfunctional
families shows that violence is at its worse during a family member's
pregnancy and during the adolescence of the family's children.'' It is
for these and other reasons that the American Academy of Pediatrics and
other organizations represented today oppose H.R. 4783 and any other
legislation that will undermine federal guarantees of confidentiality
for adolescents receiving health care services.
Since the involvement of a concerned adult can contribute to the
health and success of an adolescent, policies in health care settings
should encourage and facilitate communication between a minor and her
parent(s), when appropriate. However, concerns about confidentiality,
as well as economic considerations, can be significant barriers to
healthcare for some adolescents. For example, the potential health
risks to adolescents if they are unable to obtain reproductive health
services are so compelling that legal barriers and deference to
parental involvement should not stand in the way of needed health care
for patients who request confidentiality.
confidentiality of care
I would like to turn my attention to the issue of confidentiality--
whether adolescents can access health care services, including
prescription drugs and devices, without parental consent. The American
Academy of Pediatrics and other medical organizations that I am
representing today firmly believe that young people must have access to
confidential health care services. Every one of our states' laws also
provides confidential access to some services for young people, whether
for sexually transmitted diseases (STDs), drug addiction or
reproductive health care. Concern about confidentiality is one of the
primary reasons young people delay seeking health services for
sensitive issues, whether for substance use, an unintended pregnancy or
for other reasons. While parental involvement is very desirable, and
should be encouraged, it may not always be feasible and it should not
be legislated. Young people must be able to receive accurate diagnosis
and appropriate treatment expeditiously and confidentially.
Let me share a few general examples that underscore the importance
of confidentiality of care:
Reproductive health: Chlamydia is the number one bacterial
sexually transmitted disease (STD) in the United States today.
Every state allows a minor to give his or her consent for STD
services. However, if a young woman comes into the clinic to
receive a confidential consultation because she suspects she
has chlamydia, or some other STD, it is critical that she not
only receive the diagnosis in confidence but also the treatment
to address the medical issue. Untreated, this type of problem
can lead to serious consequences, including pelvic inflammatory
disease or hospitalization.
Eating disorder: Given the societal pressures and images
portraying the glamour of being thin, young adolescent women
face a range of eating disorders, including bulimia and
anorexia nervosa. In the case of bulimia, it may be difficult
for a parent to detect this illness and a child may not be
forthcoming with a parent for fear of disappointing them.
Having access to confidential health care services may be one
of the few avenues that an adolescent is able to pursue to
address his/her needs.
Mental Health: Unfortunately, as we all know, mental health
issues continue to be associated with a stigma, as well as
often linked with substance abuse. For adolescents this stigma
can be even more amplified for many reasons. However, we find
that a teen may see a physician in confidence for a short
period of time to address the feelings of fear or depression or
drug use and then, through these consultations, build
confidence in being able to talk a parent. Some teens are
surprised to learn that their parents are very supportive and
will not punish them for their behaviors or illness. Having a
buffer of confidentiality is critical to facilitating a
positive outcome.
Most adolescents will seek medical care with their parent or
parents' knowledge. Making services contingent on mandatory parental
involvement (either parental consent or notification) however, may
drastically affect adolescent decision-making. Mandatory parental
consent or notification reduces the likelihood that young people will
seek timely treatment for sensitive health issues. In a regional survey
of suburban adolescents, only 45 percent said they would seek medical
care for sexually transmitted diseases, drug abuse or birth control if
they were forced to notify their parents.
A teen struggling with concerns over his or her substance use,
emotional well-being or sexual health may be reluctant to share these
concerns with a parent for fear of embarrassment, disapproval, or
possible violence. A parent or relative may even be the cause or focus
of the teen's emotional or physical problems. The guarantee of
confidentiality and the adolescent' s awareness of this guarantee are
both essential in helping adolescents to seek health care.
For these reasons, physicians strongly support adolescents' ability
to access confidential health care. A national survey conducted by the
American Medical Association (AMA) found that physicians favor
confidentiality for adolescents. A regional survey of pediatricians
showed strong backing of confidential health services for adolescents.
Of the physicians surveyed, 75 percent favored confidential treatment
for adolescents. Pediatricians describe confidentiality as
``essential'' in ensuring that patients share necessary and factual
information with their health care provider. This is especially
important if we are to reduce the incidence of adolescent suicide and
other mental health concerns, substance abuse, sexually transmitted
diseases, unintended pregnancies and other preventable risky behaviors.
Many influential health care organizations support the provision of
confidential health services for adolescents; here is what they say:
The American Academy of Pediatrics. ``A general policy guaranteeing
confidentiality for the teenager, except in life-threatening
situations, should be clearly stated to the parent and the adolescent
at the initiation of the professional relationship, either verbally or
in writing.''
American College of Obstetricians and Gynecologists. ``Parents and
adolescents should be informed, both separately and together, that they
each have a private and privileged relationship with the provider.
Additionally, they should be informed of any restrictions on the
confidential nature of that relationship.''
The American Academy of Family Physicians. ``The American Academy
of Family Physicians supports the appropriateness of parental
involvement in medical decision-making for adolescents, especially when
they are engaging in precarious or adult behaviors. Whenever possible,
family physicians make an effort to facilitate parental contact to help
bridge any communication challenges that may arise between parent and
child.''
The Society for Adolescent Medicine. ``The most practical reason
for clinicians to grant confidentiality to adolescent patients is to
facilitate accurate diagnosis and appropriate treatment . . . If an
assurance of confidentiality is not extended, this may create an
obstacle to care since that adolescent may withhold information, delay
entry into care, or refuse care.''
The American Medical Association. ``The AMA reaffirms that
confidential care for adolescents is critical to improving their
health. The AMA encourages physicians to involve parents in the medical
care of the adolescent patient, when it would be in the best interest
of the adolescent. When in the opinion of the physician parental
involvement would not be beneficial, parental consent or notification
should not be a barrier to care.''
American College of Physicians-American Society of Internal
Medicine. ``Physicians should be knowledgeable about state laws
governing the rights of adolescent patients to confidentiality and the
adolescent's legal right to consent to treatment. The physician must
not release information without the patient's consent unless required
by the law or if there is a duty to warn another.''
The American Public Health Association. APHA ``urges that . . .
confidential health services (be) tailored to the needs of adolescents,
including sexually active adolescents, adolescents considering sexual
intercourse, and those seeking information, counseling, or services
related to preventing, continuing or terminating a pregnancy.''
conclusion
In conclusion, as a physician, a teacher, and most of all, as a
parent, who is concerned about the quality and safety of health care
for my daughter as well as for the quality and safety of health care
for all adolescents in this country, I urge you to reject attempts to
restrict adolescents' access to confidential health care services,
including prescription drugs or devices.
Thank-you. I would be happy to answer any questions you may have.
Mr. Bilirakis. Thank you very much, Dr. Jenkins.
Mr. Heisler.
STATEMENT OF JOHN A. HEISLER
Mr. Heisler. Mr. Chairman and members of the committee, I
want to thank you for the opportunity to come before you and
explain why McHenry County, Illinois refuses to take Federal
funding that requires us to provide contraceptive services to
minor without parental notification.
Our county was forced to deal with an issue of parental
notification when we found out that a 12-year-old junior high
student was getting chemical contraceptive shots because her
37-year-old teacher was raping her. The McHenry County Board of
Health administers a $4 million budget and generally--should I
continue?
Mr. Bilirakis. Yes, please continue. That is a message to
us regarding what is happening on the floor.
Mr. Heisler. The Department of Health has three divisions:
Animal Control, Environmental and Nursing. About 75 percent of
the revenues of the health department are derived from grants.
In the past, grants were sought out and applied for by senior
staff within the department. Grant applications are formally
submitted to State and Federal Government over the signature of
the health department administrator. Since my county's
rejection of the title X grant, all new grant applications and
all grant renewals in excess of $50,000 are submitted to the
county board for approval prior to being submitted to the
grantor.
The McHenry County Board of Health was created by
resolution of the county board, not by referendum. While State
statute in Illinois does extend a great deal of authority to
the board of health, the ultimate authority comes from the
county board who approves its budget and appoints its members.
The title X debate in McHenry County began in January 1997
when it was learned that a 12- or 13-year-old school girl had
been driven to the county health department clinic on several
occasions by her 37-year-old Crystal Lake Middle School teacher
who had been having sexual relations with her for some 18
months to receive injections of the contraceptive drug, Depo-
Provera. Unfortunately, Federal title X regulations prevented
her parents from being informed.
Her teacher, William Saturday, pleaded guilty to criminal
sexual assault charges in September 1997 and was sentenced to
10 years in prison. According to public record, Mr. Saturday
was released in February of this year after serving less than
half of his sentence. He is currently on parole and living in
McHenry County as a registered sex offender.
This teacher could not take or send a 12-year-old girl to
his school nurse. He could not take her to a private doctor or
physician. He could only take her to a title X program facility
where no parental consent was allowed. The title X grant aided
him in his crime. In Illinois we protect our children under
various State statutes. A minor cannot buy a pack of
cigarettes, a drink or even get a tattoo in Illinois because of
the potential danger. Furthermore, the school code of the State
of Illinois prohibits the administration of any drug or medical
attention without parental consent. It is shocking to think
that a Federal grant program can circumvent our State code.
As a member of the board of health, the Health Department
Oversight Committee and the county board, I began to inquire
about the no-parental notification clause of title X. I was not
made apparent of the executive review and the executive review
of the grant. Hearing no acceptable answers, I asked the health
department administrator to check with the Federal Government,
and he was told that there would be no exceptions and further
that we had to accept the title X grant with the no-parental
notification provision or reject it in its entirety. I would
like to repeat that. The Federal agency that administers title
X essentially gave the parents in McHenry County two options:
Take the title X money and be kept in the dark about your kids
or reject the money. Ultimately McHenry County did, in fact,
reject title X funding.
At the regular county board meeting of October 1997, I made
the motion to remove the approximately $47,800 in title X funds
from the county budget. In addition, as finance chairman, I
restored the gynecological services to poor adult women to the
budget from local tax dollars. The message was sent back to
Washington, ``We cannot be bought. We will not accept your
money if it affects our children. We feel it is the parents'
right to determine if any child needs medical services. A child
in McHenry County cannot be given even an aspirin from the
school nurse without parental consent. The board of health in
McHenry County will not circumvent the basic rights of parents
by accepting Federal title X funds.''
McHenry County has not applied for title X funds since this
time. We do not provide contraceptive services to minors
without parental consent. We have allocated tax dollars for
pre-natal care and all other related gynecological services to
that segment of our population that cannot afford medical
services or insurance. As with all of our nursing services, we
target recipients who do not qualify for Medicaid or have
sufficient income to afford medical insurance.
The debate over the title X grant in McHenry County was
stifled by a gag order due to the lawsuits brought against the
county by the girl's parents. Elected officials, board members
and employees were asked not to discuss the issue as it might
have had a detrimental effect on the defense of the county's
position.
Mr. Bilirakis. Please summarize, Mr. Heisler.
Mr. Heisler. I have lived in Crystal Lake all my life. My
entire family still lives in Crystal Lake, and I think I
represent the values of the majority in McHenry County. Unlike
other political issues, there was no room for compromise with
the Federal title X funds. I believe, at least in this
instance, the moral majority did prevail. If the Federal
Government continues to mandate that we keep parents in the
dark, we will be happy to provide for our own without help from
title X funding. Thank you.
[The prepared statement of John A. Heisler follows:]
Prepared Statement of John A. Heisler
Mr. Chairman and Members of the Committee, I want to thank you for
the opportunity to come before you and explain why McHenry County,
Illinois refuses to take federal funding that requires us to provide
contraceptive services to minors without parental notification. Our
County was forced to deal with the issue of parental notification when
we found out that a 12-year-old junior high school student was getting
chemical contraceptive shots because her 37-year-old teacher was raping
her.
Background:
McHenry County is about 50 miles northwest of Chicago, Illinois.
Population is approximately 280,000. McHenry County is the fastest
growing county in the State of Illinois.
The County Board is a 24-member board, made up of four elected
representatives from each of the six districts within the County.
I have been a member of the County Board since August 1994. I am a
member of the Public Health Committee, the Valley Hi Nursing Home
Committee and Chairman of the County's Finance Committee. McHenry
County has an annual budget of about $130 million and has approximately
1,200 employees including a sheriff's department of 300 officers.
Throughout the County, we have several organizations that are
supported by the County budget. These organizations have their own
Boards whose members are appointed by the County Board, and each has a
``Liaison'' member from the County Board with voting privileges. These
``Liaison'' members are on these Boards to give some fiscal guidance
and to promote the general philosophy of the full County Board.
In the fall of 1994, I was appointed Liaison Member of the McHenry
County's Board of Health. The McHenry County Board of Health had eight
members (now nine) consisting of two physicians, a dentist, a civil
engineer, a nurse, two citizens from the County and the County Board
Liaison.
The McHenry County Board of Health administers a $4 million budget
and generally sets the policies and standards of conduct for a staff of
100. The Department of Health has three divisions: animal control,
environmental, and nursing. About 75% of the revenues of the Health
Department are derived from grants. In the past, grants were sought out
and applied for by senior staff within the Department. Grant
applications are formally submitted to the State or Federal Government
over the signature of the Health Department Administrator. Since the
County's rejection of the Title X grant, all new grant applications,
and all grant renewals in excess of $50,000 are submitted to the County
Board for approval prior to being submitted to the grantor.
The McHenry County Board of Health was created by Resolution of the
County Board, not by referendum. While State Statute does extend a
great deal of authority to the Board of Health, the ultimate authority
comes from the County Board who approves its budget and appoints its
members.
Title X:
The Title X debate in McHenry County began in January 1997, when it
was learned that a 12-year-old grade school girl had been driven to the
County Health Department Clinic on several occasions by a 37-year-old
Crystal Lake Middle School teacher who had been having sexual relations
with her for 18 months, to receive injections of the contraceptive drug
Depo-Provera. Unfortunately, federal Title X
regulations prevented her parents from being informed.
Her teacher, William Saturday, pleaded guilty to criminal sexual
assault charges in September 1997, and was sentenced to 10 years in
prison. According to public records, William Saturday was released in
February of this year--after serving less than half of his sentence--
and he is currently on parole and living in McHenry County as a
registered sex offender.
This teacher could not take or send the 12-year-old girl to the
school nurse. He could not take her to a private doctor or physician.
He could only take her to a Title X program facility where no parental
consent was allowed. The Title X grant aided him in his crime.
In Illinois we protect our children under various state statutes. A
minor cannot by law buy a cigarette, a drink, or even get a tattoo in
Illinois because of the potential danger.
Furthermore, the school code of the state of Illinois prohibits the
administration of any drug or medical attention without parental
consent. It is shocking to think that a federal grant program can
circumvent our state code.
As a member of the Board of Health, the Health Department Oversight
Committee (Public Health Committee) and the County Board, I began to
inquire as to why the ``no-parental notification clause'' of Title X
was not made apparent in the executive review of the grant. Hearing no
acceptable answer, I asked the County Health Department Administrator
to check with the Federal Government, and he was told that there would
be no exceptions and further that we had to accept the Title X grant
with the ``no-parental notification'' provision, or reject it in its
entirety.
I'd like to repeat that: The federal agency that administers Title
X essentially gave the parents in McHenry County two options: 1) take
Title X money and be kept in the dark about your kids or 2) reject the
money.
Ultimately, McHenry County did, in fact, reject Title X funding. At
the regular County Board meeting of October 1997, I made the motion to
remove the approximately $47,800 in Title X funds from the County's
Budget. In addition, as Finance Chairman, I restored all gynecological
services to poor adult women to the budget from local tax dollars. The
message sent back to Washington was: We can't be bought. We will not
accept your money if it affects our children. We feel it is the
parents' right to determine if any child needs medical services. A
child in McHenry County cannot be given even an aspirin from the school
nurse without parental consent. The Board of Health in McHenry County
will not circumvent the basic rights of parents by accepting federal
Title X funds.
McHenry County has not applied for Title X funds since this time.
We do not provide contraceptive services to minors without parental
consent. We have allocated tax dollars for pre-natal care and all other
related gynecological services to that segment of our population that
cannot afford medical services or insurance. As with all of our nursing
services, we target recipients who do not qualify for Medicaid or have
sufficient income to afford medical insurance.
The Debate:
The debate over the Title X grant in McHenry County was stifled by
a gag order due to the lawsuits brought against the County by the
girl's parents. Elected officials, Board Members, and employees were
asked not to discuss the issue as it might have had a detrimental
effect on the defense of the County's position. The vocal minority in
the community was not under any such restriction. As a result, the
public debate was very one sided. Proponents of Title X organized into
a group called ``Friends of Public Health'' and attacked me at home, at
work, at church and at Board meetings. Under the gag order, I was not
permitted to reply or respond.
I have lived in Crystal Lake all my life. My entire family still
lives in Crystal Lake, and I think I represent the values of the
majority in McHenry County. Unlike other political issues, there was no
room for compromise with the federal Title X funds. I believe, at least
in this instance, the moral majority did prevail.
If the federal government continues to mandate that we keep parents
in the dark, we will be happy to provide for our own without help from
Title X funding.
Thank you.
Mr. Bilirakis. Thank you, Mr. Heisler. Ms. Wuchner, last
April, this subcommittee had a hearing on abstinence education.
I was pleased to read in your testimony that Northern Kentucky
Independent District Health Board stated an intention to focus
on what we call character-based abstinence education, including
parental communication. So I wonder if you can take maybe a
couple minutes, give us an update on the status of such
education in Northern Kentucky and what do you think of it? In
other words, your opinion, how would you grade it?
Ms. Wuchner. That change came about last year because of
research into title V funding, just like we were doing this
year in title X. And it revealed that some of the programs that
we were currently providing for the schools did not meet the
wise guidelines that Congress set forth in title V funding. And
so we had a set up a screening tool to screen programs that
would meet the guidelines and be appropriate for the values and
the conditions of our community. One of the things I want to
add is that when a public opinion poll was taken in Northern
Kentucky by the press, it was three to one in favor of
abstinence education. This is the voice of parents in our
community. That led to then a lot of hard work to discover
programs that would meet the factors in the screening tool,
meet the guidelines, and we began doing that and chose a
particular program that would now be available for this coming
school year.
I would like to say that for quite some time the health
department was not the most popular place to come for your ex
education for your schools. There were public schools that used
the programs but many that didn't. We just had a meeting and
the report was that we need to add some staff. We may have more
people than we ever anticipated, more schools signing up for
programs this fall that support character-based abstinence
education and a continuum and also the parents' communication
and parents have been put into the program. So thank you.
Mr. Bilirakis. Thank you. Thank you very much. And the
Chair now yields the balance of his time to Mr. Pitts.
Mr. Pitts. Thank you, Mr. Chairman. Mr. Chairman, I would
like to submit for the record a letter to you from the
Honorable Steven Ogden, a State Representative from Texas who
wrote a parental consent law that was invalidated by the title
X regulations.
Mr. Bilirakis. Without objection, that will be the case.
[The letter referred to follows:]
July 11, 2002
The Honorable Michael Bilirakis
Chair, Subcommittee on Health
Committee on Energy and Commerce
U.S. House of Representatives
2125 Rayburn House Office Building
Washington, DC 20515
Dear Chairman Bilirakis: Over the past several sessions of the
Texas Legislature, I have attempted to strengthen state law and
practice to ensure parents and guardians are involved in their
children's health care decisions.
Currently, Title X of the Public Health Services Act and Title XIX
of the Social Security Act hamper my state's desire to preserve the
traditional role of parents in raising their children.
In the state's appropriations bill for FY 2000-2001, I included a
rider directing the Texas Department of Health (TDH) to distribute
funds for medical, dental, psychological or surgical treatment provided
to a minor only if consent to treatment were obtained according to
Texas law (Chapter 32 of the Family Code). The rider was permitted to
be waived if federal funds would be lost.
In an exchange of letters between TDH and the regional office of
the U.S. Department of Health and Human Services in 1999, it was
determined that Texas would lose federal funds if the rider were
implemented. Nevertheless, I included a similar rider in the FY 2002-
2003 appropriations bill.
I seek your assistance in amending current federal law and
regulations to permit Texas to accept federal funds under Title X and
Title XIX without having to ignore its sovereign laws.
Sincerely,
Stephen E. Ogden
Attachments
cc: The Honorable Joe Barton
Mr. Ed Perez, Texas Office of State and Federal Relations
Mr. Pitts. Thank you. Ms. Wuchner, if a doctor in your
State's title X program decided that it was in the best of a
girl, both physically and emotionally, to notify her parents
that their daughter was receiving chemical contraception shots,
was depressed, was sick with a venereal disease, what penalty
would be levied against the title X clinic? Would your program
lose Federal funding?
Ms. Wuchner. I think it is the perception of the clinicians
that they would lose the funding. Now, there has always been
discussion to this point, but at this point no one ever
exercises that right if there is a right to do that because of
the fear of losing the funding of the program. When the board
grappled with this decision on title X funding this year, it
was the consensus that it was problematic, that clinicians
could not make that decision, that they were bound by the
structure of title X funding to provide services to minors
without parent notification.
Mr. Pitts. Thank you. Dr. Jenkins, does the American
Academy of Pediatrics support any laws requiring parental
notification or parental consent before prescribing medications
or performing surgeries?
Ms. Jenkins. Let me say that the American Academy of
Pediatrics recognizes the right for adolescents to receive
confidential care and the acknowledgment that under State
statutes are what governs most of us in terms of what we can do
in a practice situation. Again, the concept here seems to be
prohibiting physicians from notifying parents, and I don't
think that is the stand that most of us are engaged in at all.
I think most of us in fact involve parents when we can with
adolescents once they come and present issues of a sensitive
nature, including issues related to reproductive health. And so
this particular stand that we would support laws that prohibit
physicians I don't think our interpretation of the laws are
that physicians are prohibited from giving parents--engaging
parents in the health care with their adolescents. I think the
picture is that it is not in the adolescent's best interest to
think that they will come in the office, they will see you,
they will present an issue to you and then you will call their
out of the context of their engagement in that visit. And I
think those are the kinds of situations that in many of the
bills about this communication is what people are trying to
protect against. And that is the fear that you, out of the
context of the relationship within the care, that you would
then pick up the phone or do something else to notify a parent
and not really work with the young person to help them share
this information.
Mr. Pitts. Well, Dr. Jenkins, if I may interrupt, and my
time has expired, does the academy support any laws requiring
parental notification or parental consent? I mean you have
indicated----
Ms. Jenkins. You mean any laws related to what? To----
Mr. Pitts. Before prescribing medications or performing
surgeries?
Ms. Jenkins. I don't performing surgeries is part of that.
I think the academy does not support laws that require parental
consent for contraceptive care, for example, that require
parental consent. But I think part of what your question was
expands pretty far beyond that limitation.
Mr. Pitts. Well, I am not sure----
Mr. Bilirakis. The title X regs say that they must not be
disclosed, that receiving services must be held confidential
and must not be disclosed. That is what it says.
Ms. Jenkins. But when they are saying, ``must not,'' are
they saying under what kind of provision that that occurs? It
seems to me that if in some of the pictures that have been--
kind of cases that have been discussed here, that it does not
preclude the physician from counseling the adolescent about
involving their parents, okay?
Mr. Bilirakis. That is correct.
Ms. Jenkins. What it does is it says don't pick up the
phone and call somebody. It seems to me that would be my
interpretation under that situation. It does not say that you
cannot work with the adolescent and engage them in a situation
in which they would involve their parents.
Mr. Bilirakis. My time has long expired. Mrs. Capps.
Ms. Capps. Thank you. I will allow you, Dr. Jenkins, in a
moment to return to this. But, first, Mr. Heisler, you gave an
eloquent testimony to the case study, if you will, of your
country and your involvement in it. And your reason for being
here is because you say that you did not want to accept, as a
county, Federal money when it had all the strings attached to
it that it did. And you have refused title X funding which
implements mandatory parental notification laws for your health
care facilities within your jurisdiction there. But I wonder if
you have noticed that two statistics have changed in that time.
Apparently 25 percent more teenage births have occurred in your
county and that the rate of chlamydia for people 20 years and
younger has doubled whereas the surrounding counties these
numbers have continued to go down.
Dr. Jenkins, I want to thank you for being here on behalf
of the academy. The American Academy of Pediatrics has been
really on the forefront of engaging, I believe, our families to
become stronger, because it is through this kind of
communication skill that you help to instill in adolescents
that gives them the confidence to talk with their parents in
sensitive areas that sometimes teenagers are shy or hesitant to
do. I am thinking of my own experience as a mother and also
working with teen parents to watch and bring my own kids into
their pediatrician as kids and sat in the office with them, and
then at a certain point to have the child be able to walk into
the doctor's office alone and the kind of increased confidence
that gave my own children to begin to formulate the questions
that they could deal with directly with you and that I had the
confidence of trusting you and your profession.
You are kind of here today representing all of these people
within clinics and settings around the country who work with
teenagers, not the easiest group necessarily to work with,
particularly in the area of sexuality and especially perhaps in
this country where we have many conflicting standards that
impede upon a young person's mind and also recognizing, as the
academy does, the variety of family, that there is not a word
``family'' that is uniform in this country today that you
presume upon that as you see a patient come into see you within
the context of their home life, which can be very, very varied.
And so I want--I would like you to use this time to further get
at for us what this confidential relationship is, why is it so
scary to some of us, and how can we come to see it as something
that can be positive and assist our young as they make very
important and life-changing decisions?
Ms. Jenkins. Right. First of all, let me say it sounds like
you had a wonderful pediatrician.
Ms. Capps. Yes, I did.
Ms. Jenkins. Okay.
Ms. Capps. I felt very fortunate to--more than one,
actually, over the life long.
Ms. Jenkins. Is that right? Okay. Well, I think what you
have painted as a parent is that developmental context, and
that is just so important. I think very often when people deal
with their teenagers evolving through adolescence and into
adulthood, they don't understand that it is a process and that
in that process there has to be a bit of letting go, a pulling
back over time. And so what helps the adolescent really manage
themselves more effectively as older adolescents and young
adults is having the opportunity to work with their primary
care giver around these issues or to go to other health
professions and express these issues. So I think our role is to
really work with them to do that. And I think many of us also
do this outside of even our own practices. I work with a
project in the District now that works with fifth graders and
their parents around some of these issues, trying to improve
parental communication but also help the young people be
supported by their families and work with families about how to
support young people through their adolescence. So, certainly,
pediatricians are in their training programs taught these types
of skills and practice them and believe in them very firmly.
Ms. Capps. Could we focus again for the remaining time on
title X and the rare, I would hope rare, times when teenagers
present themselves to you, to our clinics in the various
communities without, with an absence, with a dysfunctional
family, if you will, or a non-existent family, an incestuous
family, whatever the--and it is not that rare. How then does
the pediatrician respond?
Ms. Jenkins. I think the pediatrician very often will look
for other adult support individuals. I think sometimes there is
not support within the family, and we have talked about
situations in which external people are engaged in some sexual
abuse with adolescents, but the incest is not uncommon and
situations in which someone in the household is having an
inappropriate relationship with the child is not uncommon. And
so many agencies also have a relationship in which they are
able to get help for these young people in addition to just
providing family planning services. I think sort of the sense
that we have this isolated sort of take this pill, take this
shot is really not the way people operate, and I think that we
understand the context in which some of this occurs, and we do
seek intervention for these young people, and we certainly
report incidents according to State and local statutes.
Ms. Capps. Thank you very much.
Mr. Bilirakis. Thank you. Mr. Pitts for his own time.
Mr. Pitts. Thank you, Mr. Chairman. Mr. Heisler, your
testimony was quite compelling. You said that the parents of
the young girl who was raped sued the county. What happened in
that lawsuit? Do you know if anyone besides the perpetrator was
held liable for keeping the parents in the dark after this
awful victimization had gone on for 18 months? And also you
said the Title X Office said essentially, ``Keep the parents in
the dark or don't take the title X money?'' Did you ever hear
from the office again when you made national news for rejecting
title X money? Did anyone from the Title X Office call and say,
``Hey, let us work something out''?
Mr. Heisler. Thank you, Congressman. Frankly, with regard
to the suit that the parents brought against the county, I do
know that the county was dismissed out of the suit. I believe
the principal at the grade school where this teacher taught was
dismissed out of the suit. Beyond that I don't know what
happened with it. Now, with respect to any further contact from
the Title X people, we have had none.
Mr. Pitts. Do you think that other concerned citizens
should ask their counties to follow your lead in breaking away
or do you think the Federal agency that runs title X should
reexamine the regulations that they have?
Mr. Heisler. Oh, absolutely. I mean I might respond to that
by saying I don't know the reason why Congresswoman Capps made
that comment to me regarding the increase in teen pregnancy in
McHenry County, but I can tell her that we have had a 100
percent decrease in teachers raping kids in McHenry County. It
doesn't happen anymore. Parents know about it.
Mr. Pitts. Thank you. Dr. Jenkins, studies have reported
that children are reaching puberty at very early ages, even as
early as 9 years old. In your professional opinion, should a
title X clinic be handing our or injecting a 9-year-old girl
with prescription contraceptive drugs? Do you think a 9-year-
old should be making medical decisions without her parents'
input?
Ms. Jenkins. I know you don't think I am going to say yes.
First of all, I think when people talk about the studies you
are talking about with puberty, they mean appearance of breast
buds, which is the onset of puberty. They do not mean, for
example, full reproductive maturity. So I think we should be
clear about we are talking about when we read those studies
about early puberal maturation.
It is my opinion that most responsible health professionals
recognize that adolescents of a certain chronologic age who
have behaviors that perhaps are in the adult range do not
necessarily have decisionmaking skills that are in that range,
and take the appropriate stances in terms of intervention of
some sort, either to try to understand what is the context of
that relationship and to seek intervention for a young person.
For example, I work in the inner city here in the District,
and the anecdotal evidence is that approximately mid-teens is a
time when you get adolescents who are reporting sometimes
certain sexual behaviors. But when you have young people who
are below those ages who come to you with any evidence and very
often they are not reporting it, it is what you find on
examination that suggests, for example, that something is
occurring, that you take the appropriate intervention. And most
often that is to engage a social service individual into
investigating what the situation is for that young person. But
I don't think----
Mr. Pitts. But you are aware that the title X regs say that
services without regard to age, you know, religion, race,
color, national origin, age have to be provided.
Ms. Jenkins. If services are provided, I don't think it
probably says specifically that you have to inject or give
someone a contraceptive if you think that is inappropriate for
what has happened to that young person.
Mr. Pitts. Well, suppose a 12-year-old girl walks into the
title X clinic, don't you think someone should be calling the
authorities or her parents? Isn't having sexual relations with
a 12-year-old statutory rape, as we heard in this case, 12-,
13-year-old? But do you agree that to comply with Federal law,
title X clinics should be reporting the fact that these minors
are coming in for contraception?
Ms. Jenkins. I think, as far as I am aware, that the
reporting of statutory rape is determined by the jurisdiction,
and in the District, for example, there are guidelines around
the age for reporting statutory rape and also child abuse. As
far as I am aware, those statutes do not necessarily say that
the first step is to call a parent up for notification. The
first step is to engage the appropriate authorities.
Mr. Pitts. Would you limit the number of times per month,
for instance, that a minor girl could get drugs? For instance,
there is no limit now for a teenager going in for the ``morning
after'' pill.
Mr. Bilirakis. Just a very brief answer to that, please, if
you can.
Ms. Jenkins. I think that is a question sort of taken out
of context, and so I----
Mr. Bilirakis. Do you want an answer to your question. The
doctor seems to feel it is taken out of context.
Mr. Pitts. Go ahead. You may proceed.
Mr. Bilirakis. Go ahead.
Ms. Jenkins. Okay. My answer would be I would need to--I
would have to know more about a case situation than to say
arbitrarily, ``You can only come here three times.'' I think we
clearly have to understand in some of the instances what we are
talking about these young people getting contraception. The
alternative in not getting contraception is pregnancy, and many
of the issues are certainly not resolved by a young person
becoming pregnant in a situation like that or being faced with
the alternative we heard about earlier, which is an abortion.
So I think when we are giving contraceptive services, we
generally are talking about a young person, for the most
instances, who is not at the ages that you are talking about
but who is an older young person. As the high school studies
show, that 50 percent or more of young people have had some
sort of sexual encounter, and so you are really not doing--
giving a drug or not giving a drug based on there being no
alternative or no other risk that presents itself.
So I think when you manage young people you look at what
the risks are for the total situation in terms of what is being
done. And very often for the young people that come to title X
the alternative is, ``Well, if I can't get contraception, I am
not going to have sex anymore.'' That generally is not what the
interpretation is. And very often these young people end up in
a situation where they either acquire an STD or they become
pregnant unintentionally. So I think we are working in a
battleground situation that is not as cut and dry as you want
to present it in the situation, let me tell you. They are very
complicated, and very often you make decisions in the context
of the total picture for the young person, but you
appropriately engage agencies when it presents to you a
situation that requires that.
Mr. Bilirakis. Thank you, Doctor. Mr. Strickland.
Mr. Strickland. Thank you. I am sitting here thinking of a
school librarian in my district that was called to the
gymnasium of one of my local schools. The girl was sick, the
coach said, ``See what you can find out.'' They went into this
broom closet. The librarian said to this young girl, ``Could
you be pregnant?'' She said, ``Oh, no, I have never done it.''
And then she started screaming, ``It is coming out,'' and this
librarian said, ``I pulled down her blue jeans and a baby was
born in that broom closet.'' That is the situation that we
face. Then the girl started saying, ``My mother will kill me.
My mother will kill me.'' I wish every family in this country
was an Ozzy and Harriet kind of family. It is not.
Now, I just want to make something clear. Title X requires
that providers comply with State laws on reporting incest, rape
and molestation. Is that not true? Can someone answer that?
Ms. Jenkins. Yes.
Mr. Strickland. So what are we talking about? If a 12-year-
old comes into your clinic and is pregnant, that child has been
molested, the report is made to the authorities, is it not?
Ms. Jenkins. Should be, yes.
Mr. Strickland. Absolutely. I think we ought to clear that
up, because I think there has been an implication here that
these clinics cover up crime, and I don't think there is any
evidence that that is in fact the case.
Dr. Jenkins, just for the record, I want to make sure that
from your point of view this is the bottom line. In your
professional opinion, H.R. 4783, the Brady Consental Parent
Bill, do you believe that bill, if passed in its present form,
would be bad for the health of children?
Ms. Jenkins. Yes, I do. I think it would be bad for the
health of adolescents who need or who will not be able to
access care and prescriptions that would be relevant to their
care, yes.
Mr. Strickland. Okay. And a question to Ms.--and if I am
mispronouncing the name, I apologize--is it Wuchner?
Ms. Wuchner. That is correct. Thank you.
Mr. Strickland. Ms. Wuchner, do you believe that women who
use birth control pills are committing abortion or abortions
result from the use of birth control pills?
Ms. Wuchner. Well, first of all, the question is
irrelevant, because we are talking about minor children and
medications given to minor children.
Mr. Strickland. But I would like to know your opinion about
an adult woman who uses a birth control pill. Do you believe--
--
Ms. Wuchner. Do I believe she is committing an abortion?
Mr. Strickland. Yes.
Ms. Wuchner. No. I think the pill operates by three
mechanisms and that is scientific fact. Do I believe she is
committing an abortion? No, at this point. Do you understand
what I mean by that? The pill has three mechanisms of action,
which is listed in the PDR. One is to prevent ovulation, the
other is to affect the viscosity of the mucous and the other
would prevent egg implantation which is a fertilized embryo if
that should occur from implanting. It would render the lining
unacceptable to that. But we are talking about minor children
and prescriptions being given to minor children and treatment
being given to minor children without their parents' knowledge,
parents who are entrusted to care for these children by just
the human nature----
Mr. Strickland. I understand.
Ms. Wuchner. [continuing] puts children in the care of
their parent.
Mr. Strickland. And I am sympathetic. I think in nearly all
cases certainly parents ought to be involved. What would you
say to those circumstances, and they occur and the occur much
more frequently than most of us would like to admit, where
there is a father, an uncle, some other relative, do you
believe there should at least some provision for not involving
the parents when a child may have been subjected to an abusive
situation within the home itself?
Ms. Wuchner. The law at that point provides a provision,
and that is the requirement that that would be reportable. That
is a reportable case to the authorities. It takes it out now of
the context of parental consent and now puts it into a legal or
an illegal situation that has occurred with a minor child.
Mr. Strickland. But isn't it----
Ms. Wuchner. You see what I am saying, that is separate.
Mr. Strickland. But isn't----
Ms. Wuchner. And that is not calling the parents to report
them if they are the perpetrators of the child. Whoever
perpetrates the child that needs to be reported. That is
problematic. We are talking about medical care and treatment of
minors, and that is different. We are not talking about an
abusive situation. It could be an abusive situation, which
means that it is reportable.
Mr. Strickland. When a young child is being sexually
involved, that is an abusive situation.
Ms. Wuchner. That is correct. When she is being sexually
abused by someone in the family, the authorities are reported
and an investigation ensues which would mean parental
notification. And if that parent is violating or a member of
that family or community is violating that child, then the
legal action and the appropriate action is going to take place
whether--there is going to be natural notification.
Mr. Strickland. Could I just follow up very quickly?
Mr. Bilirakis. Very quickly.
Mr. Strickland. Would you be satisfied if the law required
under circumstances that are difficult like this that the
authorities be notified rather than the parents?
Ms. Wuchner. The law does require under the circumstances
that authorities be notified.
Mr. Strickland. But are the parents also required to be
involved under those circumstances, as the law is written?
Ms. Wuchner. Now, we are talking about circumstances, and
we are talking about general medical care that does not involve
parents. Under the law, the authorities are notified and
parents would immediately become involved because what would
take place is the authorities would then go to begin an
investigation. See that is a separate issue. We are talking
about a child that has been now violated in some range. So that
means that there would have been authority notified, and then
what happens is it is not the clinician who is treating the
child that has notified the parents, because, again, as Mr.
Pitts mentioned, adolescents must be assured of their
confidentiality, and the musts that are mentioned or the
guidelines in title X, those musts are mandatory. You can't
breach from those. So the only way around that must is to go to
the legal authorities and report it. The clinicians' hands are
tied.
Mr. Strickland. My time is up. Thank you.
Mr. Bilirakis. Mr. Towns, to inquire.
Mr. Towns. Thank you very much, Mr. Chairman. Let me begin,
Mr. Heisler, by making sure that I understood you. You said
that the majority--are you saying the majority of the health
care professionals support your position or are you saying the
majority of the people in McHenry County support your position?
Mr. Heisler. No, I said the majority of the people in
McHenry County.
Mr. Towns. Well, is it true then that before McHenry County
Health Board was able to successfully reject title X funding,
they first voted not to reject title X funds? Is that true? Yes
or no.
Mr. Heisler. The board itself, the health board itself, we
had several votes. It came down to a 4 to 4 at the health
depart-ment----
Mr. Towns. Four to 4 is not a majority.
Mr. Heisler. No, I know. The health board did not initially
reject title X. The county board rejected the title X funding.
The county board appoints the health board and approves their
budget.
Mr. Towns. Let me make certain I understand. There is a
representative by the name of Cal Skinner who changed the
numbers on the board in order to break a tie, and then you went
out shopping for someone who committed themselves, and
indicated the fact that they would vote to reject the funds.
You had to campaign to get somebody to do that.
Mr. Heisler. No, that is not right.
Mr. Towns. After you got that person to do that----
Mr. Heisler. Not at all.
Mr. Towns. [continuing] then you ended up having a 5 to 4
vote. Now, how do you arrive at this great majority that you
keep talking about here?
Mr. Heisler. You are misinformed, Congressman. That is not
at all what happened. The change in the number of members in
the board of health, which is a subboard of the county board,
went from five to four, eight to nine, so we could have that 5
to 4 well after this whole title X thing was over with. We
didn't want to have that happen again.
Mr. Towns. If it was 4 to 4, how did you get that? I mean
somewhere in here I am losing a step.
Mr. Heisler. Well, let me explain it. The board of health--
--
Mr. Towns. Four to 4 is a tie.
Mr. Heisler. Four to 4 it fails, you are right. Four to 4
it fails. The board of health did not reject it. The county
board removed the funding, removed the title X funding. The
county board funds the board of health activities.
Mr. Towns. Well, let me ask you this then, isn't it true
that the majority of the health care professionals in McHenry
County spoke out adamantly in favor of continuing title X
funding?
Mr. Heisler. I wouldn't say that that is true at all.
Mr. Towns. Well, I have a letter from 23 doctors and nurses
in McHenry County, as well as a number of organizations, such
as the Illinois Caucus of Adolescence Health, who disagree with
your opinion on this issue. Isn't it also true that only one
physician came out in support of ending title X funding?
Mr. Heisler. You seem to have the statistics there, sir. I
don't know who that one physician might be. I can tell you----
Mr. Towns. I don't want to meet him either. I don't want to
meet him. Go ahead.
Mr. Heisler. I can only tell you what happened. And what
happened, McHenry County appoints the board of health. The
county board appoints the board of health. The county board
created the board of health. The board of health, through some
decision that it might make that perhaps adverse to the
philosophy of the elected officials of McHenry County, can in
fact dissolve the board of health. The ultimate authority at
McHenry County relative to these title X grants comes with the
elected officials of the county board. We rejected it 15 to 6.
Mr. Towns. Let me say this: Is it safe to say that you do
not represent the values of the majority of the medical
profession in McHenry County? Is it safe to say that?
Mr. Heisler. You can say that. I am not a medical
professional, I didn't take a poll of the medical profession of
McHenry County. I speak for the people. I am an elected
official of McHenry County. I speak for 250,000 people that
live there. I have lived in McHenry County for 58 years.
Mr. Towns. You didn't take a poll of the people either.
Mr. Heisler. Let me explain that. My grandfather started a
shoe store 100 years ago on the corner of Crystal Lake,
Illinois, and there is more people that walk into that shoe
store and tell me about their philosophy of life than walk into
your home office I will bet you because we know what is going
on. My brother is on the county board. We know how the people
feel in McHenry County about this issue. That is why it failed.
Mr. Towns. I seriously doubt that, because I come from a
county that represents 2.5 million people, so I seriously doubt
that.
Mr. Heisler. Well----
Mr. Bilirakis. The gentleman's time has expired. Now, is
this something you want to continue on for another few seconds?
Mr. Towns. Well, no more than the fact that I think that
his testimony is very misleading. He indicated that the
majority of the people, and it would seem to me he had taken a
poll of the people of McHenry County. I mean and then all of a
sudden he is talking about somebody walking in a shoe store.
Mr. Bilirakis. Well, I am not going to speak on behalf of
Mr. Heisler, but he is an elected official just as we are. We
are representing the people, and I think what his point is that
he represents the people in that area, and if he wasn't
representing them adequately as far as this issue or any other
issues are concerned, he would no longer be an elected official
when his elections take place.
Mr. Towns. Well, maybe the next election will take care of
that.
Mr. Bilirakis. So anyhow, the time is expired. Mr. Akin,
would you like a couple of minutes to inquire? You have been
very patient, you have sat here throughout this entire thing.
You obviously have an interest in it.
Mr. Akin. Yes. Thank you, Mr. Chairman. I appreciate that
opportunity. I did have a question or two. I just wanted to
clarify a couple things.
Mr. Bilirakis. All right. Let us do it. Let us do it.
Mr. Akinn. Thank you. I guess any of the three of you might
be able to answer this, but, Dr. Jenkins, perhaps maybe you
could. Let me just give you a hypothetical because there has
been a little bit of confusion about exactly, at least from
listening to testimony, where we are in this. Let us say that
you are in a title X clinic, a child comes into you, let us
just assume it is a minor child. And the child says, basically,
``I want some contraceptive shots'' or whatever it is, and they
are a minor. And they say, ``My mom and dad would shoot me if
they knew I were here. But I know that I can come here and
trust you, and so therefore I want this--I am a minor and I
want this medication.'' Can you, according to the law, call
that child's parents and tell them what is going on? I am not
talking about what you want to do, I am just saying legally
could you do that the way the law is set up now?
Ms. Jenkins. Under title X?
Mr. Akin. Yes.
Ms. Jenkins. What has been discussed here is that
apparently to pick up the phone and call the parent at that
point would be not allowed under title X.
Mr. Akin. So it would be illegal for you to do that.
Ms. Jenkins. As far as I understand title X. I don't know
if you are trying to set me up.
Mr. Akin. No. I am just trying to get the facts as to how
this works. I am not trying to get you thrown in jail.
Ms. Jenkins. Okay. I don't have it in front of me, but
based on what we have talked about, that is what the guidelines
say, okay?
Mr. Akin. Ms. Wuchner, is that your understanding that that
would be----
Ms. Wuchner. Yes, Mr. Akin, that is correct.
Mr. Akin. So it would be illegal for people----
Ms. Wuchner. I am looking at the regs, exactly. It would be
illegal----
Mr. Akin. Okay. So they could not do that.
Ms. Wuchner. It would be in violation of the guidelines
that are mandated in title X, yes.
Mr. Akin. Okay. Now, Dr. Jenkins, you have mentioned that
you deal with a lot of different kinds of situations, and some
of them are just kind of dicey; they are not the sort of things
that are--I understand that. But also there are some families
that are functional out there. What this law says to me is that
de facto we are giving the minor the right to choose their
parents, effectively, in this situation. And they are saying as
a minor, ``Well, you know, my parents, I don't really want to
accept what they are saying is right and wrong or what they
think I should be doing, and so I am going to end run their
authority and come to you.'' Does it make you feel
uncomfortable when the parents know nothing about it, let alone
consent to it, that in a sense you usurp their role as an agent
of the State in cases where maybe there is a very functional
family?
Ms. Jenkins. My experience has been that a lot of times
young people overestimate the reaction of their parents, okay?
And what in my position I very often do is to try to work with
them around getting a better communication with their parents
about it. I don't just say, ``Okay, you don't want to tell your
parents. Okay. There is no discussion about that.'' Because I
have found that over time when there is a functional family
that most parents would rather their kids get some help and not
be at risk for adverse and negative outcomes. One of my very
first experiences of health----
Mr. Akin. Well, I think you answered my question, and
actually it seems like a very common sense answer, what you
said. You know, what you are saying is is that you try to work
with the particular situation, try and bring some
reconciliation and maybe steer the child back toward their
parents. I mean I think that is a real common sense answer.
I guess the concern I have is the way the law is set up
right now. What you are telling me is that you are prohibited
from having the alternative of talking to the parent at all in
this situation.
Ms. Jenkins. I don't think that is true. I think what it
says----
Mr. Akin. Unless the kid acquiesces.
Ms. Jenkins. Yes.
Mr. Akin. So in every one of these situations we are
basically giving the government the de facto right to usurp or
to take over the role of parents without the parents' knowledge
or consent when the child is a minor. That is the way it is set
up now. I think most of us believe that, yes, if you can, you
work with the parents, but it seems like the law is actually
contrary to that situation, and it seems like to me you talk
about making decisions, the first natural line of defense for
the child is the parents. And who is making the decisions?
Doesn't it seem logical to at least give the parents a chance
to be parents? I understand there are dysfunctional families, I
understand there are parents who don't want to make the
decisions, don't care about their children. But there are some
who do.
Mr. Bilirakis. Well, the gentleman's time has expired. Ms.
Capps, for 30 seconds to finish this up.
Ms. Capps. I was going to ask my colleague to yield and
just to give Dr. Jenkins an opportunity. You are assuming that
it is a mechanical situation where a child comes in, demands a
prescription and it is automatically written. And I don't think
that is the kind of relationship that I heard Dr. Jenkins
talking about. The optimum relationship is one where you have
known this adolescent over years, if possible. Now, that is not
always that way, but there certainly isn't anything in this
law, as I understand it, that requires that the State usurps
the role of the parent. It does give one protection really for
abnormal, abusive relationships in which a child is a victim.
And there is no adult other than this provider who is a
professional, who should be trusted to both report and also
work with. Now, that is why I think it is difficult to answer
the question because it is not one that I would assume that you
find yourself in.
Mr. Bilirakis. Well, the gentlelady's time is long expired.
Ms. Wuchner, as long as everybody is taking liberties----
Ms. Wuchner. Yes, sir.
Mr. Bilirakis. [continuing] do you feel that there should
be more flexibility in title X? I mean, you know, we have
discussed all of these problems, and we know that there are all
sorts of different and often very difficult situations, and I
think it is very easy to put ourselves in the shoes of Dr.
Jenkins and some of the patients that she sees. But from the
standpoint of flexibility, do you have a comment, very briefly?
I don't want to--you know, we have been at this for 2\1/2\
hours now.
Ms. Wuchner. Okay. Basically, I think there has been a lot
of confusion. It is not the long-term relationship that happens
in a public health clinic, it is short term. Usually the
patient, there are two visits, and clinicians would love to
encourage young people to notify their parents, but that
doesn't take place, and I told you in 75 percent of the times
it doesn't.
Mr. Bilirakis. And they can't do that without the approval
of the child; is that right?
Ms. Wuchner. Without the approval of the child. It is the
mandates of title X, they are restricted by that. So there is
not an opportunity to bring that child and that parent together
in dialog without the permission--even when the clinician know
it is in the best interest of that child and they are fearful.
Mr. Bilirakis. Even if Dr. Jenkins, who seems to----
Ms. Wuchner. In a title X clinic.
Mr. Bilirakis. [continuing] I mean not seems to, who cares
about children, if Dr. Jenkins feels that she should do it in
certain instances, unless she gets the approval of the child,
she can't do it.
Ms. Wuchner. I am a nurse and I have worked with doctors
for many years as a nurse, and we use nurses in our clinics
because that is what required by the State. And there is not
one clinician that wants to come there that day and give bad
care, but the law ties the hands of the clinician, it ties the
hands of the board. We could not make our decision, and this is
the point that we came to where it was an agreement almost on
the majority of the board that title X was problematic in this
area.
Mr. Bilirakis. All right.
Ms. Wuchner. I hope I answered your question.
Mr. Bilirakis. You did, you did. All right, listen. The
record remains open obviously for opening statements on the
part of the members of the committee, and also remains open
regarding the opportunity to submit questions to you three good
people where hopefully you will respond to those in a timely
fashion. You know, we appreciate it very much. We can just go
on and on and on. This is a very significant topic, obviously.
Yes, ma'am?
Ms. Capps. May I just make one question to you, Mr.
Chairman.
Mr. Bilirakis. Lois, very quickly.
Ms. Capps. Twenty-five States have laws guaranteeing access
to contraception to minors, and 50 States for STD treatment. So
this law, if it is enacted by Congress, will usurp a lot of
States' rights; am I correct?
Mr. Bilirakis. You are telling me, don't ask me. Well, I
don't know what the future of this legislation is, but
obviously it would have an opportunity for debate in all of
these technical points, and the answer to your question would
all come out. But these good people are here to help us make
those decisions.
Ms. Capps. And I just--since Ms. Wuchner has worked in a
lot of these clinics, doctors don't have to prescribe. I mean
the question that came from my colleague very to the point of
saying that the minor comes in and you can't notify the parent.
But you also don't have to prescribe.
Ms. Wuchner. First of all, I will just clarify, I have
never worked in the clinic. My area is women's health, but I am
on the board of the directors of the health department.
Ms. Capps. Well, I guess it would be Dr. Jenkins. I mean
you don't automatically write a prescription for a 12-year-old.
Ms. Jenkins. No. There are lots of reasons why you wouldn't
do that.
Ms. Capps. Where you would not do that, it would not be in
the child's best interest.
Ms. Jenkins. Right.
Mr. Bilirakis. Okay. All right.
Ms. Capps. I promise not to ask anymore.
Mr. Bilirakis. The hearing is over. Thank you very much.
[Whereupon, at 5:35 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
Prepared Statement of McHenry County Citizens for Choice
McHenry County Citizens for Choice (MCCC) is a local non-partisan
grassroots organization dedicated to education about women's
reproductive rights. We represent the full spectrum of McHenry County
voters. Our activists include a cross section of moderate Republicans
and concerned Democrats who are also members of such diverse groups as
the League of Women Voters, The Women's Leadership Council, The
American Association of University Women, and The Religious Coalition
for Reproductive Choice. Supporters also belong to professional groups
such as the American Academy of Pediatrics, the American Medical
Association, and the American Association of Public Health.
MCCC represents thousands of citizens in McHenry County who have
been diametrically opposed to the past and present attempts of
Congressman Donald Manzullo (R-16) to deny minors confidential access
to the Title X program through the imposition of federal parental
consent restrictions.
In McHenry County, during the 1997-1998 period under discussion,
there were hundreds of post cards and letters sent to the county board
in support of Title X funding. In addition, more than twenty local
medical doctors, including pediatricians, signed a common letter of
support. None of these documents were ever publicly or privately
acknowledged. Other medical professionals, public health
administrators, advocates for adolescent health and private citizens
wrote letters to the editor of the local paper and came forward at
regularly scheduled meetings of the Board of Health and the full County
Board to speak in favor of retaining Title X funds and it is noteworthy
that the two medical doctors on the Board of Health supported Title X.
Congressman Manzullo has continually failed to address the concerns of
his constituency regarding this matter in his attempts to make this a
national issue.
The major travesty however, was the way in which opponents of Title
X repeatedly attempted to link a local criminal case involving
predatory sexual abuse with the teen confidentiality requirement in
Title X. That action confused the issue and distracted local elected
officials whose concern should have been focused on the public health
issue under their jurisdiction.
The case in question began in 1997 and involved a multimillion-
dollar lawsuit alleging sexual abuse of a minor, which was brought
against a teacher, his employer--Crystal Lake School District 47, and
the County Health Department. In a subsequent civil suit against the
local Church of Jesus Christ of Latter Day Saints, the girl divulged
that the teacher, who was also a youth minister at the church,
originally befriended her during a church outing to Six Flags Great
America. According to court records the abuse began in the spring of
1995. Nine months later the abuser took the girl to the Health
Department where she told nurses and a doctor that she needed birth
control. The records indicate that she had been sexually active for
nine months before her visit to the Health Department.
Nevertheless, Congressman Manzullo misrepresented the true
situation when he was quoted in an interview with the local newspaper,
``It simply brings into focus what happens when a 14-year-old receives
birth control shots from a health department without the knowledge or
consent of the parents.''
To complicate matters, the law suit brought by the parents of the
victim against the County Health Department and the school district
effectively curtailed any public discussion at the county level. At one
point the County Board was also involved peripherally in the legal
entanglement. It provided a large window of opportunity for only one
side of the issue to be aired since the litigation forced the Health
Department professionals, the Board of Health and eventually the County
Board, to remain silent under direction of their attorneys. The
hundreds of cards, letters, and petitions signed and submitted by
ministers, teachers, healthcare workers and local residents received no
response or public recognition.
The local newspaper filled its pages for months with articles about
the ``sex scandal.'' It repeatedly cited the use of Title X services,
thereby craftily relaying a subliminal message about the evils of
contraceptive availability. There were two other cases of sexual
misconduct with minors involving teachers in McHenry County during this
same period; one teacher convicted in 1997 and another facing charges
that same year. However, apparently because contraception was not an
issue, both received only a perfunctory reference in the last paragraph
of a front page article on this case.
Was there really a concern for the well-being of a teen victim or
was it an opportunity to take the focus away from Title X as a public
health issue and replace it with personal religious ideology shrouded
in the cloak of ``parental control?'' ``Parental control'' has long
been a wedge issue for ultra-conservatives and to engender fear is an
effective tool when in reality your position has no substance.
Religious political manipulation can have tragic consequences in the
lives of real people especially when it is substituted for sound
professional consideration on issues of public health.
Teenage sex is a serious issue with two aspects: (1) moral, and (2)
public health. The morality of the issue must be handled by the
teenagers, their parents, and their clergy or other professionals they
wish to involve. The public health side is appropriately handled by the
civic agencies such as the Health Department which is charged with
maintaining the health and safety of the citizenry. It is yet another
example of the importance of keeping issues properly categorized. It
was when the Health Department abandoned its civic mission and became
an arbiter of morality due to extreme political pressure that the issue
became so muddled that everyone sustained a loss; the teens, the
community, the taxpayers and the integrity of our local government.
The ideal concept of parents communicating and guiding their
adolescents through the difficult years to adulthood is one on which we
can all agree. The problem is, we are not in an ideal world. We are in
a world of advertising which sells products by promising better sexual
opportunities. A world where there are less than ideal homes, where
little or no information is given, where parenting skills are lacking
and in some where real abuse exists.
The confidentiality of Title X is no threat to parental
involvement. Parents can and should talk to their children and educate
them on these issues every day of their lives. With accurate
information, open communication and the opportunity to discuss good and
bad choices along with consequences and responsibilities . . . many of
society's problems could be solved.
The concept of parental involvement is right. But laws are not the
answer. More realistically, in our community, as in many, we need to
build the societal infrastructure to ensure reasonable success for our
teen population in navigating the difficult adolescent years. By that
we mean comprehensive sexuality education and parenting classes for
both parents and teens, a coordinated community effort sponsored by
hospitals, schools, churches, local agencies and the media.
What happened in McHenry County was not about parent's rights. It
was about closing access to information, professional counseling and
reproductive care. It was about changing the focus from all the
positive elements of Title X and furthering a child rearing philosophy
based on withholding contraceptive information. It was about punishing
teens who have disobeyed their parent's by forcing them to bear the
consequences of an unwanted pregnancy or sexually transmitted disease
to teach them a lesson. It was also about some parents, unsure of their
own ability to communicate effectively with their teens, trying to
block out any source of information that might be available in the
community. Something like burning books.
If there was any doubt that right-wing politics and personal
religiosity had a stranglehold on this issue from the beginning, it
should be noted that it was the wife of the chairman of the health
board who raised the level of rhetoric against Title X (with the
backing of a local right-wing state representative). This person
organized a demonstration outside the county building before a health
board meeting where the only non-print medium represented was a
religious television station.
Locking the door of Health Departments by requiring parental
consent will not keep teens from having sex. We know that 85% (Planned
Parenthood ) are already sexually active for nearly a year before they
access those services. When they do, it is because they fear they may
be pregnant.
If contraceptive availability is not why teens have sex then what
is? Many teens find solace in sexual relationships when love, attention
and self esteem are missing in their lives. They want someone who will
love them unconditionally and not leave. We fail to acknowledge that
teenagers have sex for the same reasons adults do. We lose credibility
when we deny that our children are sexual beings. But they must be made
aware that having sex carries with it all sorts of responsibilities.
They must feel a responsibility for the physical and emotional well-
being of the other person and be prepared for all the possibilities and
decisions that being sexually active may present to them such as
disease and unintended pregnancy. For those reasons and others, it is
both desirable and rational to be abstinent until physically,
emotionally and financially able to enter a committed long term
relationship.
The professionals at health clinics can address the emotional and
physical needs of their patients in a straightforward non-judgmental
way. They can encourage better parent/teen communication to seek
solutions for the reasons the teen feels the need for a sexual
relationship. It can be the intervention that prevents that teen from
becoming another abortion statistic or entering the welfare rolls as a
single parent. This type of counsel is, in fact, required under the
provisions of Title X.
The issue should not be viewed as a matter of parental rights or a
political battle to be won. It is simply the most compassionate and
financially effective way of addressing real and pressing problems of
preventative health care in our community. People of good will
recognize that while everyone is free to guide their own children, we
cannot close the door to a healthful and productive life to teens who,
for whatever reason, are not receiving that guidance. A caring
community should not abandon teens who are most at risk, those who are
already disadvantaged by all the conditions associated with poverty,
and dysfunctional or broken families. Those teens must also have access
to good counseling and education from professionals they trust, who can
help them learn how to make responsible decisions in their lives.