See You In Court
May 2nd, 2007 by Peter
Just back from the state capitol, where the House just approved the bill forcing Catholic hospital complicity in chemical abortions by 113-36. I’ll have more soon on key parts of the debate. (Watching T.R. Rowe’s speech from inside the Democratic Caucus Room was an interesting experience.)
As we have noted before, the next likely step will be a lawsuit based on the Connecticut Religious Freedom Act. Watch for more information.
T.R. Rowe did a great job! Can’t imagine what it was like from where you were, Peter!
They’ve asked for a fight, and they will get it. If this is allowed to occur in Catholic hospitals without a fight, just think what they’ll force on those hospitals next!
The key factor in any future case based upon the Connecticut Religious Freedom Act (CGS Section 52-571b) will be showing that the EC mandate is not “the least restrictive means” of furthering the government’s interest.
You can read the law here –
http://www.cga.ct.gov/2007/pub/Chap925.htm#Sec52-571b.htm
I just today emailed all those legislators again, on the whole of my latest comments in the most recent comboxes.
I asked them all the same questions I asked Genghis Conn et. al. and have yet to receive replies for:
If you voted/are voting for the Plan B legislation, how do you feel about the fact that you endorse giving women who’ve already been victimized by rape, a drug that is 10 to 30 times the dosage of the drug that, based on data that is older than 9 years old and thus hasn’t been evaluated since Plan B came out, is classified worldwide as “possibly carcinogenic to humans” [“Progestogen-only contraceptives (Vol. 72; 1999)”, http://monographs.iarc.fr/ENG/Classification/crthgr02b.php ]?
Will you be around to make amends to those women and their families 20 years from now if studies show that, like HRT, it fueled their cancers and killed them?
No replies yet from any of them either (though I know T.R.Rowe need not reply since we know he’s on the correct side of this)
[…] The FIC Blog is threatening (promising?) that this will go to court. Possibly Related Posts: Compassionate Care Passes 32 to 3 in the Senate […]
This infuriates me. The duplicity of the bill proponents is astounding. Over and over again we heard how it doesn’t cause chemical abortions, yet that is exactly one of the “effects” listed on the pill’s website. The Catholic hospitals had a very effective and compassionate protocol in place already for rape victims. This was a power play all the way, and I can’t possibly see how the “least restrictive means” test would pass here. Saying “you must” with no exception is far from “least restrictive”.
zookeeper, did you either see or read Dr. Davidoff’s testimony? If you did, you’d know what hormone in Plan B causes the thickening of cervical mucus and is produced by the body to support a fetus post-implantation. They’ve never found Plan B to flush out an implanted egg, but have found some evidence that taking Plan B after implantation actually decreases the chance of the woman’s body rejecting the pregnancy on its own.
It’s pretty clear that Davidoff’s testimony conflicted with the drug maker’s prescribing information. Dr. Davidoff said:
And yet the prescribing information for Plan B (Levonorgestrel), provided by Duramed Pharmaceuticals, Inc., states the following:
It’s quite a dilemma, having such conflicting evidence. But we don’t need to have a definitive answer, in order to have valid grounds for objecting to the plan of treatment. In considering the “right of conscience” for healthcare providers to refuse to participate in a plan of treatment that they find morally objectionable, and in light of the uncertainty shown above, we need only consider whether it is plausible that the drug will act as a “chemical abortion” of a newly conceived life. The same “right of conscience” requires that we respect an individual’s choice in support of recognizing that human life begins at conception, and not at implantation.
The “right of conscience” is an integral part of a person’s free exercise of religion.
Consequently, even when the state determines that there is a compelling interest in ensuring that patients are provided with the option of a medical treatment, the state must nevertheless ensure that its actions do not infringe unduly upon the “right of conscience”. The state is required to act in a manner that is the least restrictive means towards upholding the compelling interest. And it is in this manner, through the newly enacted EC law, the government has overstepped its bounds.
Catholics certainly have the right to a free exercise of religion. But they do not have the right impose their religion on others in a publically funded medical facility. The state has a duty to insure that all citizens receive medical treatment according to the standard of care and free from bias, religious or otherwise.
If indeed the “right of conscience” is of prime importance to the Catholic hospitals, it is time for them to admit honestly that they are unable, by their religous beliefs, to provide medical treatment according to the standard of care in this instance.
They should stand on their beliefs and stop asking for special treatment. They should admit they cannot provide the treatment required, and willingly give up their certification to provide emergency treatment to victims of rape.
All victims of sexual assault can then be treated at facilities that will provide medical services free from religious bias.
Further, a study should be conducted to ascertain any other areas of treatment where Catholic belief is at odds with the medical standard of care, and certification removed in those areas as well. Funding should be adjusted accordingly, of course.
That will leave Catholic hospitals to provide care according to their religious standards in areas where their beliefs are not at odds with safe, humane, standard medical treatment — and assure that the population receives safe and appropriate medical care in medical facilities certified to provide it.
Chele says:
And yet nothing in “An Act Concerning Compassionate Care for Victims of Sexual Assault” is tied to the receipt of public funding. Even if Catholic hospitals receive absolutely no public money, the EC requirement would remain very much in force. It is only tied to being a licensed facility, and has nothing to do with the source of funding.
Moreover, as it stands currently, the influx of Medicaid patients into Catholic hospitals is effectively subsidized by their own charity, since the state reimburses only 68% of the actual cost of services. Connecticut should be ashamed of its poor handling of fiscal responsibility in this matter. Nationally our state ranks as one of the worst repayment rates for Medicare (47th out of 50). This shortfall – amounting to hundreds of millions of dollars annually – is in fact borne by the charity of medical institutions.
Eliminating treatment options at Catholic healthcare facilities will mean more patients need to be served elsewhere, without that charitable funding “safety net”. Consequently there will be less access to healthcare, and increased costs to the taxpayers.
Another point to ponder, as I wrote several months ago, is this:
As it should be.
By “effectively,” do you mean “actually?” Does the Catholic Church in CT actually draw down its treasury to fund some percentage of salary and equipment costs?
Or do they do what every other hospital operator does, and overbill privately insured patients to compensate?
“Eliminating treatment options at Catholic healthcare facilities will mean more patients need to be served elsewhere, without that charitable funding “safety net”. ”
Are non-Catholic hospitals in Connecticut reimbursed at greater than 68%?
Are you claiming that non-Catholic hospitals in Connecticut turn away Medicare and non-insured patients, who then have no place to turn but Catholic hospitals? (If so, I believe you should report that to the State.)
Do you claim that Catholic hospitals in Connecticut receive less money than non-Catholic hospitals from SAGA, DSH, the Uncompensated Care Pool and the like?
Talking about national reimbursement rates is tangential to this discussion at best. What we are talking about here is the church in Connecticut claiming it needs and deserves special treatment under Connecticut law.
You seem to be saying that Catholic hospitals perform charitable functions that other hospitals in the state do not — and that that entitles them to be exempt from the law and from adhering to certain standards of care.
Can you document that Catholic hospitals act and are treated differently in the care of and reimbursement for “charitable” patients?
If so, can you make the case that acts of charity exempt medical providers from adhering to standards of care?
Philosophically, does the Catholic Church believe that charitable acts should all be compensated in some way, either financially or by special treatment and/or privileges? If “charity” is reimbursed, is it charity?
The question of funding is not really going to be germane when it comes to judicial review of the EC legislation. I only brought it up because I keep reading mistaken comments from the Left, both here and on other local blogs, to the effect of “if the Catholic hospitals take public money, then they have no right to impose their religion”. Those who have monitored this issue closely on both sides of the aisle will readily admit this has nothing to do with the source of funding, and everything to do with restraining the actions of the church. The new EC law applies universally to all licensed providers, irrespective of their source of funding.
I do not believe the church is asking for any special treatment above and beyond what existing law already provides in the Connecticut Religious Freedom Act. The state may burden the free exercise of religion only if it demonstrates there is a compelling governmental interest, and that the action undertaken is the least restrictive means of furthering that compelling governmental interest.
The “right of conscience” is not a special right that must somehow be “earned” by good works of charity. It is an inherent part of the freedom of religion that our Founding Fathers determined should be an integral part of our country’s values!
BTW, another blog entry from Bishop William E. Lori (Diocese of Bridgeport) can be found at “Free Republic” – http://www.freerepublic.com/focus/f-religion/1826813/posts
Within this posting, Bishop Lori responds to the criticism that the church reneged upon its original compromise proposal, and explains the truth about the type of compromise that would have been acceptable.
Would that have been a “less restrictive” means of furthering the compelling government interest in ensuring that patients are provided with the option of treatment via Plan B? Oh my, yes it would have been. Looks like the EC law is going to be overturned in court.
I understand that a lot of people have made the case on funding grounds, but I’ve argued before (on this blog and in testimony to the lege) that it’s rightly a standard of care matter on which the granting of a license should be based.
And was that Bishop Lori article in the Fairfield County Catholic? I thought I’d read the same piece in the Bpt Post.
Bishop Lori is a freeper!!???
God help the Church.
First of all, there is simply no intellectually honest way to make a statement like, “Looks like the EC law is going to be overturned in court.” There just isn’t a way to predict what triers of fact will do in a given situation, from juries up to and including the SCOTUS (for example, what were the odds on Scalia and Stevens agreeing in a concurring opinion in Hamdi (or Hamdan? I get them mixed up) v. Rumsfeld – there are no two unlikelier bedfellows)!
Second, this case will probably turn on the definition of the compelling government interest. It is not at all clear that the definition of the compelling governmental issue in this case will be “ensuring that patients are provided with the option of treatment via Plan B” rather than “ensuring that patients are provided with the option of treatment via Plan B as soon as possible“.
For the first, so long as the patients have access to Plan B at some point, the interest is satisfied. For the second, the access must come within a time period for the interest to be satisfied. I’m sure the state (and intervening parties) will argue the science (helpfully contained in the legislative history) that Plan B is a certain percent effective when given within a certain time frame and that its effectiveness diminishes over time to show that the compelling government interest is to make Plan B available within the time frame where it will be effective.
Given that rape is a violent crime and rape victims don’t normally traipse out of the hospital 3 hours after they come in, there is a strong argument to be made that the Plan B must be available as soon as possible.
Now whether the Court will accept that article and find that the bill passed is, in fact, the least restrictive means of ensuring that interest, is very much up in the air. I wouldn’t be so bold as to predict the outcome.
Gabe,
Doesn’t a determination of meeting a compelling goverment interest also involve an assessment that there are no reasonable alternatives to lowering the heavy hand of government against individual liberties?
I guess I disagree with you that there is a strong argument to be made that Plan B must be made available at the hospital. Other options that we have previously discussed seem to be reasonable accomodations that would meet the needs of all parties. On that basis, I find no problem with anyone handicapping the outcome of a future trial. Further, generally acceptad accounting principles applicable to hospitals require reporting expected outcomes from lawsuits. The American Bar Association has a longstanding policy on providing just such advice.
NaCN nails it. Gabe gives three paragraphs to “compelling state interest” and mentions “least restrictive means” only in passing in his second to last sentence. But I expect nearly the whole case to hinge on that latter principle: Did the bill just passed meet “the least restrictive means” of applying a compelling government interest? It is there, more than the definition of a compelling government interest, where all the religious liberty concerns come into play.
NaCN –
I agree with you totally, but I was replying to a comment that had predecided the compelling interest and then determined that there were less restrictive means of fulfilling the predetermined interest. As I write below, this is a two prong analysis and the (ignored in comment #12) first prong will be as contentious as the second.
Again, I agree with what you are saying with regard to predicting future outcomes about damages when hospitals have to make a public accounting, but this isn’t a tort case and no damages will be at issue (and no monetary settlement is possible). If you make a predicition about a case that interprets statutory or constitutional law and you are right, you should play the ponies, because you just got lucky.
Peter –
My point was that you can’t have a discussion of the least restrictive means until you determine the compelling government interest. If the compelling government is that rape victims need access to Plan B at some point in the future, then I agree that the least restrictive means to get them the Plan B would be to strap it to the back of homing turtles at the pharma factory and let them walk it to the rape victims at their homes.
Since the effectiveness of Plan B deteriorates over time, its pretty unlikely that would be the least restrictive means to actually fulfill the compelling governmental interest. There will be a subgroup of rape victims who are still in the hospital past the point where Plan B ceases to be reliably effective. Unsurprisingly, those patients will not be outside of the compelling governmental interest – this is a two part test. In order to determine the least restrictive means, the compelling governmental interest must be determined.
The commenter above, the one that I was replying to before your comment stripped mine of its context, identified a compelling governmental interest as if there would be no argument and then – viola – determined that there was a least restrictive means to fulfill that interest. Quite obviously, the least restrictive means will vary if the compelling governmental interest is to deliver Plan B within 1 hour, 24 hours, 72 hours, or at some undetermined point in the future.
Gabe,
Even if the temporal context is administration of Plan B within 1 hour, there are still reasonable alternatives that would not require a Catholic hospital to administer – or hire someone else to administer – the drug.
Gabe, let us assume for argument’s sake that the court determines the compelling government interest in the way most favorable to your side. The case would still hinge on whether the bill passed by the legislature–forcing Catholic hospitals to contract with an independent provider to administer the drug on hospital premises–is the least restrictive means to accomplish that end.
Peter, lets. The comment that I was replying to assumed the opposite.
I’m not sure I get that out of Dave’s comment. He seemed to me to be talking about both parts of the two part test. What I inferred from your response to him seemed confirmed by your (#18) response to me: you’re focusing on the wrong part.
I got it from here:
Following a discussion of how Plan B does not have to be made available in the hospital (seemingly making it unavailable for rape victims who are still in the hospital when the Plan B effectiveness window closes).
What you should infer from my comment #18 is that I am focusing on the first part first. You can’t make an argument that a means is or isn’t the least restrictive to fulfill the compelling government interest until you decide what the compelling government interest actually is.
Hey wait a second, court? I thought the real fight was going to be in the House!
You guys are so funny sometimes.
It was more of a fight than the Senate, which was all I meant. And I’m still waiting for you to show me where I said the real fight would be in the Senate.
And they wonder why some call them “hit and run”…
I never claimed that *you said* the fight would be in the Senate — my sources said that was the case when the voice vote was taken to delay the DeLuca amendments until the final vote tally.
I have to say, I give DeLuca a hard time sometimes, but I think he could tell you guys were just using him — and he deserves kudos for declining to offer the parental notification and other amendments when he came to that realization.
Wait, what’s that? Rowe didn’t introduce his other amendments either? Jeez Peter, I thought you were earning your pay that day you skipped out on the compassionate care hearings. What exactly did you do?
Oh and wait, are you suggesting that I’m part of the biased “hit and run media” that Rush and Bill O’Reilly are always caterwauling about?
1. In another thread you said to me “It’s interesting that you say the “real battle will be in the House” — since last week it was looking like the real battle was going to be in the Senate.” to which I resonded “Really, Matt? I don’t recall ever saying that. Perhaps you could show me otherwise.” You never responded until now. So fine, you didn’t say I “said” it; you merely implied. Whatever.
2. It’s interesting to see by your guess work what you and others do and don’t know about what’s happening. After your analysis of our Jan. 31 press conference I noted some of your errors but generally gave respectful attention to your commentary. But in the lead-up to our Feb. 21 rally it was clear from things you guys were saying that you didn’t know we were about to turn out twice as many people as you. So do I give you a head’s up? Of course not. My response to your post on our Jan. 31 press conference was a courtesy; strategically, it’s better to let you guess at stuff you don’t know about–even it means you taking personal shots at me.
3. But you don’t have carte blanche to take those shots on this site. Your arguments are welcome; your ad hominen attacks are not. Please abide by the commenting rules.
Or Gabe’s Rules of Commenting, whichever you prefer…
…because they work so well on Gabe’s site. 🙂
No commenting rules work. I named your rules after me, since I apparently created the need for rules here with my (too subtle) ironic humor…
Gabe,
A point of clarification. Requirements to display or disclose in financial statements the expected outcomes of legal proceedings are not limited to torts. Further, accounting estimations of torts are not limited to questions of fact. They sometimes require predictions of how courts will resolve questions of statututory or constitutional law. Moreover, there are various other accounting standards that require discussion of . . . well, lots of other legal stuff germane to this issue.
I continue to believe that there are reasonable accomodations that can be reached without requiring the Catholic hospitals to administer Plan B (the least-restrictive-means part). Also, as I have said before, the Plan B bill seems to be a solution in search of a problem (the compelling-government-interest part). My judgment is that Dave’s prediction is reasonable. On an expected value basis, I would play that pony. 😉
As the case can go either of two ways, its reasonable to pick one of them sure, but that doesn’t make it more than a WAG…
A very informed and educated WAG for sure.
Well thats what I took issue with – its hard for me to call something informed and educated when it assumes the first part of a two part test without discussion and then applies it to the second part to get the desired result. Rinse. Lather. Repeat.
We’ll have to agree to disagree on that assessment.
Agree? Without throwing things? Now you are talking crazy…