DDay has piece up about the possible text of the Executive Order (EO) in play over abortion.

K-Lo thinks she has an early copy of that executive order (which she writes as “The Executiive Order” – and she’s the editor-in-chief of National Review) on abortion funding.

I was struck by the conscience objection language:

5. Addition Conscience Provisions

“(1) Nothing in this Act shall require an otherwise qualified health plan, including an Exchange-participating plan, to cover any items or services to which the issuer, plan sponsor, or purchaser has a moral or religious objection, provided the plan is at least actuarially equivalent to a qualified health plan that covers the essential health benefits.

“(2) If a health plan is permitted not to cover items or services under paragraph (1), then the issuer, plan sponsor, or purchaser shall not be required to include such items or services in such plan as a condition of (A) being eligible for a premium tax credit or cost-sharing reduction, or (B) avoiding any assessable payment or any other tax, assessment or penalty under this Act.

“(3) Nothing in this Act shall prohibit a qualified health plan, including an Exchange-participating plan, from contracting with an individual or institutional health care provider that declines to provide, participate in, or refer for an item or service to which the provider has a moral or religious objection.

“(4) Nothing in this Subsection shall be construed to deny, alter, or modify any right or duty any person may have under state or local law, or under federal laws other than this Act.”

“(5) Nothing in this Subsection shall be construed to authorize a health plan to deny coverage for all medical care, or for life-preserving care, to an individual based on a view that treats extending the life or preserving the health of the individual as of lower value than extending the life or preserving the health of others because of the individual’s disability or other characteristic.”

It is unbelievably overbroad. Think about the literal meaning of these words: "Nothing in this Act shall require an otherwise qualified health plan, including an Exchange-participating plan, to cover any items or services to which the issuer, plan sponsor, or purchaser has a moral or religious objection.” [emphasis mine].

Not just abortions, birth control, HIV treatment, tubal ligations, vasectomies, what about circumcisions? Some people think mental illness is actually demonic possession, do they get to opt out? Some people think that drug and alcohol addiction are moral failings, not illnesses—can providers opt out of those treatments?

What happens to an emergency patient brought in to a Catholic hospital? Her religion does not forbid therapeutic abortion to save the life of the mother, and it’s too late to transfer her elsewhere (a real issue in remote and rural locations). Does she have to die for something that does not run counter to her own religion or morality?

Further, it creates a way for anti (name the medical procedure of your preference) groups to put pressure on any for-profit business to force that business to develop a, ahem, “moral objection” to the procedure that will cause the picketers to go away.

Under this language expect to see picketers outside major pharmacy chains, threatening to shut down their lucrative business in magazines, bottled ice tea, snacks and cosmetics unless they stop dispensing Plan B. Then it will be unless they stop dispensing the pill, then vaginal rings, spermicides and eventually condoms.

And you know what? If you are a big pharmacy chain, with a CEO who answers to shareholders, what are YOU going to do? Go for conscience or profits? Soooooo, your Board of Directors will develop a moral objection to whatever it is that will make the picketers go away. Independent pharmacies will have even less ability to handles the pressure to their bottom line, leaving those few who put conscience ahead of profit still dispensing the full range of available treatments—and then they will be forced to suffer the fate of Planned Parenthood clinics, bomb threats, assaults on patients, murder of the health care provider.

And once the Catholic Charities Hospital System gets this language and uses it to cow doctors and patients into religious submission, watch and wait for one or both of the following: 1) a proliferation of religious sponsored hospitals that have all sorts of religiously tailored treatment gaps, and 2) attacks and pressure upon non-religious hospitals of the sort Planned Parenthood has suffered for decades.

It also has implications for doctors’ career tracks. Soon, if a doctor worked at a public hospital that performed abortions, will that mean they can never be hired at a private religious hospital or other private hospital that has developed a pecuniary, whoops, “moral“ –I meant to say MORAL objection to a particular treatment or procedure?

Do you think it will never come to that?

Story from my own life: I was student at St. John’s University. If you were a baptized Roman Catholic at SJU, you were required to take 4 semesters of Roman Catholic religion classes in order to graduate. SJU had one of the best Schools of Pharmacy in the country. Its 5 year undergrad program allowed one to become a licensed pharmacist w/o having to go to grad school.

So, one year, there is some scheduling goof up (labs or something) and it turns out that most of the pharmacy Seniors who had not already gotten their religion requirement out of the way, could only fit in this one religion class. I was a little pipsqueak freshman or sophomore and just happened to sign up for that class.

On the very first day, the professor asks if anybody in his class is a pharmacy major. All but 2 or 3 raise their hands. He then asks, if any of that group is NOT a Roman Catholic and just happens to be in his class for some other reason, maybe one hand goes down.

He heaves a big sigh, and says that none of the Catholic pharmacy majors can possibly get a passing grade in his class—why? Because their profession would call upon them to dispense birth control! I kid you not.

He skipped right over the fact that the well regarded SJU School of Pharmacy sent many graduates into research rather than dispensing, or that there are other reason why women take birth control pills such as hormonal imbalances, which the doctor would know about, but the pharmacist would not.

As you can imagine the minute class was over, the army of pharmacy majors went howling down to the Pharmacy Dean’s office, the Registrar’s office, and University President’s office. Within hours parents and their lawyers were threatening to sue.

The next time that class met, I got there and there were only 3 or 4 people in the room. The VERY PISSED OFF professor said he was obligated to read a notice that said that the University had opened up another section of the class and any student who had a reason to believe that they could not pass the current class by virtue of some academic conflict or moral conflict would be allowed to transfer.

I raised my hand and told my professor that I was on the pill and that I should not be obligated to tell him why (whether for birth control or for therapeutic reasons) in order to be treated fairly in his class. He refused to sign my transfer and said that I had to disclose the reason why I took the pill.

So, I went down to see the Registrar, who let me transfer anyway. The school, though obviously a Roman Catholic institution felt obligated to not allow dogma to create a situation where the academic requirements of one discipline were trumped by the academic requirements of another discipline.

If this EO passes, I wonder if SJU will be forced by the bishops not to allow the teaching of topics relating to various birth control medications and devices—many of which have other uses, are relevant in research and in understanding drug interactions—and will that program be degraded to the point where it is turning out graduates with huge gaps in their knowledge.

How many times will Galileo have to recant?

UPDATE:

Jane has revised proposed EO lenguage Here.

The text does not contain section 5 quoted above, but still contains thisnew protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.

Which effectively ties the hands of executive branch agencies looking ot avoid the conscience exception language inthe Senate bill. Obama could have remained silent on this point and may still revise the EO language further, but right now it looks like the US taliban and the Inquistion have gotten the tool they need to take over control of a woman’s right to choose.

Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.

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