In yesterday's post on a case of an ambulance driver's "moral refusal" of taking a woman in severe pain to a women's clinic, a frequent criticism came up: "But wouldn't the EMT get in trouble if she died? Surely they could revoke his license?"
This, sadly, can no longer be assumed. In at least one state--Mississippi--the scenario of an EMT conducting a "moral refusal", the woman dying as a result, and the EMT getting off scot free is an unfortunate possibility.
Even worse, Mississippi's law is now considered a model "moral refusal" statute--as we'll see below.
The worst "moral refusal" law in the country
Under the older standard of "moral refusal" laws, these tended to be restricted to just refusing to participate in abortions, were limited to specific healthcare providers (doctors and hospitals), and included "life and health of the mother" exemptions that required treatment (including, if necessary, therapeutic abortion) if necessary to save her life.
Unfortunately, this can no longer be assumed--especially in Mississippi, the state with the single most hostile legal environment to abortion (therapeutic or otherwise) in the United States.
In 2004, Mississippi passed what is the broadest "moral refusal" law in the country--covering everyone from neurosurgeons to candy stripers to insurance companies to hospitals--as part of a group of laws intended to drive out the sole remaining provider of both therapeutic and elective abortion in the state.
Mississippi's "moral refusal" law is included in title 41, chapter 107 of the Mississippi Code, Annotated. § 41-107-5, which contains the particular section referring to healthcare providers, notes:
(1) Rights of Conscience. A health care provider has the right not to participate, and no health care provider shall be required to participate in a health care service that violates his or her conscience. However, this subsection does not allow a health care provider to refuse to participate in a health care service regarding a patient because of the patient's race, color, national origin, ethnicity, sex, religion, creed or sexual orientation.
(2) Immunity from Liability. No health care provider shall be civilly, criminally, or administratively liable for declining to participate in a health care service that violates his or her conscience. However, this subsection does not exempt a health care provider from liability for refusing to participate in a health care service regarding a patient because of the patient's race, color, national origin, ethnicity, sex, religion, creed or sexual orientation.
(3) Discrimination. It shall be unlawful for any person, health care provider, health care institution, public or private institution, public official, or any board which certifies competency in medical specialties to discriminate against any health care provider in any manner based on his or her declining to participate in a health care service that violates his or her conscience. For purposes of this chapter, discrimination includes, but is not limited to: termination, transfer, refusal of staff privileges, refusal of board certification, adverse administrative action, demotion, loss of career specialty, reassignment to a different shift, reduction of wages or benefits, refusal to award any grant, contract, or other program, refusal to provide residency training opportunities, or any other penalty, disciplinary or retaliatory action.
(Emphasis mine. Of note, the "sexual orientation" restriction has in fact been challenged and there has been a movement to strike this.)
It should be noted that not only can an EMT (or anyone, from neurosurgeon to candy striper) refuse to perform a procedure (or refer someone, or provide info on a procedure, or refuse to perform a procedure even on the order of another doctor or the patient) claim "moral refusal" in any circumstance, in fact is is in fact illegal under this law to sanction a health care provider for performing "moral refusal"--even if someone dies as a result.
Literally the only restrictions on "moral refusal" cover federally protected classes (again, with the exception of sexual orientation). No "life or health" restriction. If someone dies, tough.
§ 41-107-3 defines "health care provider" as:
(b) "Health care provider" means any individual who may be asked to participate in any way in a health care service, including, but not limited to: a physician, physician's assistant, nurse, nurses' aide, medical assistant, hospital employee, clinic employee, nursing home employee, pharmacist, pharmacy employee, researcher, medical or nursing school faculty, student or employee, counselor, social worker or any professional, paraprofessional, or any other person who furnishes, or assists in the furnishing of, a health care procedure.
Yes, you're reading this right. The law, as written, covers literally everyone from doctors down to candy stripers and medical transcriptionists.
The section also defines "participation" as:
(f) "Participate" in a health care service means to counsel, advise, provide, perform, assist in, refer for, admit for purposes of providing, or participate in providing, any health care service or any form of such service.
It further defines "health care service" as:
(a) "Health care service" means any phase of patient medical care, treatment or procedure, including, but not limited to, the following: patient referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing, dispensing or administering any device, drug, or medication, surgery, or any other care or treatment rendered by health care providers or health care institutions.
§ 41-107-11 actually enables people to sue for any attempt to lay down the law, even so much as trying to have a license revoked because someone died as a result of "moral refusal":
(1) A civil action for damages or injunctive relief, or both, may be brought for the violation of any provision of this chapter. It shall not be a defense to any claim arising out of the violation of this chapter that such violation was necessary to prevent additional burden or expense on any other health care provider, health care institution, individual or patient.
(2) Damage Remedies. Any individual, association, corporation, entity or health care institution injured by any public or private individual, association, agency, entity or corporation by reason of any conduct prohibited by this chapter may commence a civil action. Upon finding a violation of this chapter, the aggrieved party shall be entitled to recover threefold the actual damages, including pain and suffering, sustained by such individual, association, corporation, entity or health care institution, the costs of the action, and reasonable attorney's fees; but in no case shall recovery be less than Five Thousand Dollars ($5,000.00) for each violation in addition to costs of the action and reasonable attorney's fees. These damage remedies shall be cumulative, and not exclusive of other remedies afforded under any other state or federal law.
(3) Injunctive Remedies. The court in such civil action may award injunctive relief, including, but not limited to, ordering reinstatement of a health care provider to his or her prior job position.
Again, as written, legally the risk that someone could die is not a defense; they have to allow the "moral refusal", consequences be damned, or else they're opening themselves up to lawsuit...and the person responsible will probably get his job back anyways.
And even if you are lucky enough to find a doctor willing to make the appropriate referral to Jackson Women's Health Organization (the sole remaining provider in the state for both therapeutic and elective abortion), you may well still be SOL. For starters, according to Miss. Code. Ann. § 41-107-3 your insurance company is included as being able to conduct "moral refusal":
(d) "Health care payer" means any entity or employer that contracts for, pays for, or arranges for the payment of, in whole or in part, a health care service, including, but not limited to, health maintenance organizations, health plans, insurance companies or management services organizations.
And under § 41-107-9, they can also happily deny your claim even in the case of a medically necessary abortion with no penalty:
(1) Rights of Conscience. A health care payer has the right to decline to pay, and no health care payer shall be required to pay for or arrange for the payment of a health care service that violates its conscience. However, this subsection does not allow a health care payer to decline to pay or arrange for the payment of a health care service regarding a patient because of the patient's race, color, national origin, ethnicity, sex, religion, creed or sexual orientation.
(2) Immunity from Liability. No health care payer and no person, association, corporation or other entity that owns, operates, supervises or manages a health care payer shall be civilly or criminally liable by reason of the health care payer's declining to pay for or arrange for the payment of a health care service that violates its conscience. However, this subsection does not exempt from liability a health care payer, or the owner, operator, supervisor or manager of a health care payer, for declining to pay or arranging for the payment of a health care service regarding a patient because of the patient's race, color, national origin, ethnicity, sex, religion, creed or sexual orientation.
Even having your employer specifically go for companies that will pay for medically necessary abortions becomes legally problematic:
(3) Discrimination. It shall be unlawful for any person, public or private institution, or public official to discriminate against any health care payer, or any person, association, corporation, or other entity (a) attempting to establish a new health care payer, or (b) operating an existing health care payer, in any manner, including, but not limited to, any denial, deprivation, or disqualification with respect to licensure, aid, assistance, benefit, privilege or authorization, including, but not limited to, any authorization to create, expand, improve, acquire, affiliate or merge with any health care payer, because a health care payer, or a person, association, corporation or other entity planning, proposing or operating a health care payer declines to pay for or arrange for the payment of any health care service that violates its conscience.
(Of note, this is explicitly designed to knock out one of the most effective methods against expansion of "moral refusal"--namely, filing legal complaints against mergers and "borgings" of smaller insurance companies by "faith-based" groups and groups that don't pay for medically necessary abortions.)
This is, of course, also assuming that the doctor's office and/or hospital haven't been taken over by "moral refusers"--Miss. Code. Ann. § 41-107-3 includes them in the list, too:
(c) "Health care institution" means any public or private organization, corporation, partnership, sole proprietorship, association, agency, network, joint venture, or other entity that is involved in providing health care services, including, but not limited to: hospitals, clinics, medical centers, ambulatory surgical centers, private physician's offices, pharmacies, nursing homes, university medical schools and nursing schools, medical training facilities, or other institutions or locations where health care procedures are provided to any person.
And, just like the others, they can happily conduct "moral refusals"--consequences be damned:
(1) Rights of Conscience. A health care institution has the right not to participate, and no health care institution shall be required to participate in a health care service that violates its conscience. However, this subsection does not allow a health care institution to refuse to participate in a health care service regarding a patient because of the patient's race, color, national origin, ethnicity, sex, religion, creed or sexual orientation.
(2) Immunity from Liability. A health care institution that declines to provide or participate in a health care service that violates its conscience shall not be civilly, criminally or administratively liable if the institution provides a consent form to be signed by a patient before admission to the institution stating that it reserves the right to decline to provide or participate in a health care service that violates its conscience. However, this subsection does not exempt a health care institution from liability for refusing to participate in a health care service regarding a patient because of the patient's race, color, national origin, ethnicity, sex, religion, creed or sexual orientation.
(Sections 3 and 4 are identical to the sections pertaining to insurance companies, prohibiting any complaint or preference for non-"moral refusers" and actually setting up legal sanctions for doing so.)
In short, Mississippi's "moral refusal" law is explicitly designed from the ground up to give near-total, blanket immunity to any healthcare provider or agency giving "moral refusals" to treatment or directives--and not just total immunity even in the event of a patient's death, but explicitly exposing anyone who dares to try to challenge this to SLAPPs by law.
Part of a hostile environment
The Mississippi "moral refusal" law is bad enough in and of itself, but in combination with other measures designed explicitly targeting abortion providers, an environment is created that is so hostile that Alabama and Tennessee are friendlier environments for even medically necessary abortions (and it is a rare thing indeed when Alabama is less dominionist-friendly than another state).
First of all, Miss. Code. Ann. Chapter 75 of title 41 contains the state regs for ambulatory surgery facilities--and fully half the regulations apply solely to women's clinics providing abortion services.
All abortions performed in the state (even medically necessary abortions) are required to have ultrasounds performed first; the sole exemption from a 24-hour waiting period (and mandatory discussion of "OMG IT'S A BEBEH") is in the case of imminent threat to life; under § 41-75-29 doctors must have not only admitting privileges with a nearby hospital but also an ambulance service on call to transport if necessary. Per § 41-75-29, women's clinics are subject to the same restrictions as sex offenders or liquor stores (can't be within 1,500 feet of a church, school, or kindegarten); there are also two different classifications of "abortion facilities" whose legal requirements for licensure are undocumented in law.
The state Department of Health, which is in charge of regulating women's clinics, has its own regs up of minimum required standards for sites performing abortions. Included are regs requiring an anesthesiologist on site (pages 14 and 26-27), requirement for an RN to be specifically on site as an "abortion charge nurse" and a minimum of one RN per six patients (page 14 and 25-26), must pay a yearly bond of $3000 (page 6), monthly reporting of numbers of abortions and complications (page 8), explicitly requires women's clinics to be within 30 minutes of a hospital that the doctor at the clinic has admitting privileges to as well as being able to be on staff at a local trauma center, with copies of the admission privs paperwork given to the state board of health (page 14), sanitation and documentation requirements that approach those needed for ISO 9001 certification and exceed those used in typical hospitals (pages 15-17, 19-22, and 27), a requirement to report potential anthrax (among other reportable diseases) (page 17-19), specific bureaucratic requirements for the surgery area (pages 25-26), specific regulations re drugs that prohibit nurse practitioners from prescribing medication and require drug control akin to that used for addictive drugs (pages 27-29), and specific bureaucratic requirements for labs (pages 29-30).
In addition, women's clinics and other facilities performing abortions have unique architectural requirements. There are specific guidelines for bed clearance (page 30), size of procedure room (page 30), specific requirements for sizes of corridors and doors (page 34), and other notes that essentially serve as potential licensing "gotchas".
Normal ambulatory surgery facility regs in Mississippi aren't as stringent; the bond is only $2500 yearly, sanitation rules are nowhere near as ornerous, there is no mandatory requirement for an RN or a minimal nurse/patient ratio, medications are not required to be stored under as stringent conditions, no minimum clearance requirements exist for beds nor specific measurement requirements for procedure and recovery rooms, and considerably more architectural leeway is allowed.
These requirements in and of themselves are largely designed to throw women's clinics into a sort of bureaucratic hell. Combined with Mississippi's "moral refusal" law, it makes for such an environment where it is effectively next to impossible to obtain abortion services in Mississippi save at one women's clinic--and its legal future is iffy:
The state law passed in January 2006 requires that any Mississippi facility where abortions are performed after the 12th week of pregnancy be approved to do so by the Mississippi Department of Health after complying with a new set of regulations. So while the only Mississippi clinic already had met rigorous rules determining the width of its hallways and the size of its parking lot, for example, it now had to spend almost $100,000 to meet the new standards, which require costly changes like hiring another full-time nurse and expanding the hours of the ultrasonographer.
The exacting letter of the law is in keeping with the kinds of restrictions the state has already placed on abortion -- which include a mandatory 24-hour waiting period after counseling and a requirement that minors inform both parents before having an abortion -- but the way this law is being enforced in itself amounts to "a form of harassment," according to Susan Hill, president of the National Women's Health Organization, which oversees abortion clinics in five states, including Mississippi.
Hill says the Jackson clinic complied with most of the regulations almost a year ago. By late July 2006, the only outstanding requirement, she says, was that the clinic's doctor have admitting privileges at a nearby hospital. Though Dr. Booker applied to several hospitals, including Women's Hospital in Jackson, none would grant him the status. "Some wouldn't even send an application," says Hill. "They said they didn't allow abortions in their hospital, even though the arrangement isn't so he can do abortions there, it's for treating complications."
Disturbing as this is, this does risk spreading to the rest of the country.
Mississippi's "moral refusal" law as model--and possibilities for even worse laws
As it is, thanks to the Mississippi law, Jackson Women's Health Organization no longer performs abortion, therapeutic or otherwise, after sixteen weeks--after this, women who require abortions for medical reasons must essentially be medevaced to either Birmingham, AL, or Nashville, TN. Between "moral refusal" (which means that literally no hospital in the state will perform even therapeutic abortion--all are "moral refusers") and other facilities having to shut down, JWHO is the last in line.
And Mississippi--and its "moral refusal" law and hostile environment where the right to choose is dying the death of a thousand cuts--is outright hailed as a model for the nation by dominionists. Operation Save America and Pharmacists for Life International have both used the Mississippi law as a model, and in fact a proposed Wisconsin bill would go even further. At least one domionionist anti-reproductive-health group called "Americans United for Life" also distributes model legislation; they explicitly promote Mississippi's "moral refusal" law as the appropriate model for the US.
There is probably a reason for this--namely, it would appear that Americans United for Life's model bill was used verbatim as the basis of Mississippi's "moral refusal" law.
Make no mistake, though--dominionists actually consider the situation in Mississippi just the beginning. The state is still criticised for not outright banning the prescription of mifepristone, better known as RU-486 (no matter that thanks to the existing regs on facilities performing abortions, the only place you can get it is at JWHC).