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The National Catholic Bioethics Center
Public Policy Report February 2018
© 2018 by The National Catholic Bioethics Center
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Bioethics and Public Policy Report
February 15, 2018
• Notre Dame clarifies contraception coverage: After months of mixed-messages, the University of Notre Dame announced that it will provide contraception directly through its insurance plan. President John Jenkins, CSC, stated that while the institution remains “unwavering in our fidelity to our Catholic mission,” other community members’ religious beliefs and practices needed to be respected by the university as well. Notre Dame decided to cover contraceptives directly because when they were provided through its third-party administrator, the panels included abortion-inducing drugs such as Plan B and ELLA. By assuming coverage directly, the university can exclude these drugs and limit panels to “simple contraceptives,” those that only prevent fertilization. The insurance plan will also cover Natural Family Planning. Approximately 17,000 people utilize the Notre Dame plan. (For the opposing perspective of a Notre Dame faculty member, click here. For the statement of Bishop Kevin Rhodes, Diocese of Fort Wayne, click here.)
• House to decide on “Right to Try”: Last summer, the US Senate unanimously passed a socalled “Right to Try” bill that allows patients with a serious illness to request experimental medications that have not yet been approved by the Food and Drug Administration (FDA). Supporters of the bill argue that the drug approval process is too long, and that terminally ill patients should have access to any drug that could help save their life. Opponents of the bill, including the American Cancer Society, Cancer Action Network and Susan G. Komen, argue that the legislation would not lead to greater patient access to experimental drugs, and it would undermine current patient protections.
• Congress kills IPAB: The US Congress eliminated the controversial Independent Payment Advisory Board, or IPAB, as part of a spending bill that passed on February 9th. The IPAB, sometimes referred to as “death panels,” was an entity created through the ObamaCare legislation to reduce the growth rate in Medicare spending.
• DOE no longer involved with bathrooms? The Department of Education (DOE) is indicating that it will no longer investigate complaints from students claiming to be transgender that they are not allowed to use the bathroom of their choice. DOE spokesperson Liz Hill explained that such complaints are not covered by Title IX, and that this law prohibits discrimination on the basis of sex, not gender identity. Hill stated: “Where students, including transgender students, are penalized or harassed for failing to conform to sexbased stereotypes, that is sex discrimination prohibited by Title IX. In the case of bathrooms, however, long-standing regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX.” In May 2016, the Obama administration issued “guidance” through DOE stating that Title IX guaranteed students claiming to be transgender access to restrooms and other school facilities that matched their gender identity. In February 2017, the Trump Administration rescinded this guidance.
State by State
• Mississippi moving to further limit abortion: By a vote of 79–30, the Mississippi House has passed a bill that would ban abortion after 15 weeks of pregnancy. The state presently bans abortion at 20 weeks. If enacted, House Bill 1510 would mark the earliest ban in any state. The bill includes exceptions when there is a risk to the life or physical health of the mother, or when there are fatal fetal anomalies.
• Florida appealing abortion decision: The state of Florida has filed notice that it will appeal Circuit Judge Terry Lewis’ ruling that that state’s 24 hour waiting period before obtaining an abortion is unconstitutional. In January (see the 1/15/2018 “Bioethics and Public Policy Report”), Lewis ruled that the law itself was unconstitutional, and that the waiting period not only fails satisfy a “compelling state interest,” but it is also unduly restrictive. The state Supreme Court has already stated there is a “substantial likelihood” that the law is unconstitutional.
• More states restricting abortion coverage: The Kaiser Family Foundation is reporting that it is getting more difficult for women to purchase insurance that covers abortion. Prior to the passage of Obamacare in 2010, four states banned abortion coverage in their stateregulated private plans, but today that number stands at ten and it will soon increase to eleven when a new Texas law takes effect in April.
• Abortion proponents targeting states: The newly formed “Reproductive Freedom Leadership Council,” in collaboration with Planned Parenthood, is actively promoting proabortion legislation in various states. For example:
1. A Maine bill that would allow abortions to be performed by physician assistants and nurse practitioners.
2. New Jersey legislation that restores state funding to Planned Parenthood.
3. A Rhode Island bill that repeals existing abortion restrictions and “safeguards” access to abortion.
4. California legislation (already passed by the state Senate) that requires public universities to make abortion pills available on campus.
5. Repealing Missouri’s mandatory 72-hour wait period to have an abortion.
• Oregon bill to allow for euthanasia? Opponents of Oregon’s proposed House Bill 4135 claim that if passed, the bill will allow mentally incompetent patients to be starved to death. Under current Oregon law, a healthcare representative does not have the authority to make life-ending decisions for an incapable person unless the representative has been given authority to do so, or the incapable person meets one of four end-of-life situations defined in state law. However, if HB 4135 is enacted, people who appoint a healthcare representative—but make no indications regarding end-of-life care—would be allowing their healthcare representative the power to make a life-ending decision on their behalf, even when their condition did not meet one of the four statutorily defined end-of-life situations.
• Vasectomy coverage mandate? While controversy continues with the Obama Administration’s federal contraception coverage mandate, some states are taking the issue to the next level. As of January 1st, Maryland is mandating that insurers cover vasectomies as “preventive care” with no out-of-pocket cost to the patient – self-insured plans remain exempt. Maryland joins Illinois and Vermont as states that recognize vasectomy as preventive care, and Oregon soon will as well. Interestingly, the Maryland law is raising questions because IRS rules do not classify vasectomy as “preventive care,” a reality that could negatively affect the tax benefits of individual health savings accounts. Also of note, while the present Maryland law does not include condoms, a bill was recently introduced that would cover them free of charge as well.
• California judge upholds cake maker’s rights: Superior Court Judge David Lampe has ruled in favor of the free speech and religious liberty rights of a cake maker being forced to bake a “wedding” cake for a same-sex couple (very similar to the Masterpiece Cake case that is now before the US Supreme Court). Cathy Miller, the baker, informed the couple she would be happy to sell them a premade cake, but because she believes that marriage is between one man and one woman, she could not design a cake that violated her beliefs. In his ruling, Judge Lampe stated, “The State is not petitioning the court to order defendants to sell a cake. The State asks this court to compel Miller to use her talents to design and create a cake she has not yet conceived with the knowledge that her work will be displayed in celebration of a marital union her religion forbids. For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.” For more on the case, click here.
• Magistrate who wouldn’t perform same-sex “weddings” vindicated: North Carolina has restored lost salary and retirement benefits to former magistrate Gayle Myrick who was forced out of her position because she would not violate her religious beliefs by performing civil marriages for same-sex couples. An administrative law judge ruled that the state violated civil rights laws when it failed to provide her an accommodation to which she was entitled under federal law, thus forcing her to resign. Myrick was awarded $300,000, including $122,660 in back pay. State officials acknowledge that she was treated unfairly and maintain that the settlement “makes her whole.”
• WMA proposes abandoning conscience protections: The World Medical Association (WMA) is proposing changes to its 2006 “Declaration on Procured Abortion.” Presently, number 6 of the declaration states:
“If the physician’s convictions do not allow him or her to advise or perform an abortion, he or she may withdraw while ensuring the continuity of medical care by a qualified colleague.”
The recommended revised language states:
“Individual doctors have a right to conscientious objection to providing abortion, but that right does not entitle them to impede or deny access to lawful abortion services because it delays care for women, putting their health and life at risk. In such cases, the physician must refer the woman to a willing and trained health professional in the same, or another easily accessible health-care facility, in accordance with national law. Where referral is not possible, the physician who objects, must provide safe abortion or perform whatever procedure is necessary to save the woman’s life and to prevent serious injury to her health.”
• No conscience protection from assisted suicide: Physicians in Massachusetts are concerned that a proposed assisted suicide bill will contain no conscience protection for doctors who oppose assisted suicide. The current draft of the bill contains no such protections, and it would force physicians to refer suicide-seeking patients to willing practitioners. Dr. Mark Rollo, a primary care physician stated, “We are mandated by this current bill to transfer a patient to someone else. I don't want to be complicit in killing a patient.”
• NY executive order to undermine religious liberty? New York Governor Andrew Cuomo has signed an executive order banning the state from conducting business with entities that “promote or tolerate” any form of discrimination against specific people. Beginning May 1st, state agencies will be unable to enter into contracts with entities “that have institutional policies or practices that fail to address the harassment and discrimination of individuals on the basis of their gender identity, transgender status, gender dysphoria or any of the other protected classes.” In addition, schools that “refuse to protect transgender students” will not be eligible for state funding. It is not clear how this order will affect religious-based institutions that object to homosexual acts, or to affirming people with a gender identity disorder.
• Aborting away Down syndrome: Similar to Iceland, Denmark is using prenatal screening and abortion to “eradicate” itself of Down syndrome. Presently, only 2 percent of unborn children in Denmark diagnosed with Down syndrome are born, and many Danes believe this to be a good thing. “We are moving towards eliminating Down’s syndrome and some other disabilities,” said John Brodersen, professor in public health at the University of Copenhagen. “There’s no doubt this is eugenics.” Abortion is legal in Denmark for any reason up to 12 weeks, it extends to 22 weeks in cases of physical or mental disability.
• Obamacare numbers drop slightly: Final 2018 Obamacare enrollment numbers show a 3.7 percent drop, a number that surprised many given the volatility surrounding the program during the first year of the Trump Administration. The total number of subscribers for 2018 was 11.8 million, compared to 12.2 million who enrolled in 2017. State-based marketplaces gained a slight increase in enrollment, while the thirty-four states that use the federal marketplace saw a 5.3 percent drop.
• Gerber’s first Down syndrome “spokesbaby”: For the first time in 90 years, Gerber has chosen a child with Down syndrome as its spokesbaby. One-year-old Lucas Warren of Dalton Georgia was chosen from over 140,000 entries as the 2018 winner. “Every year, we choose the baby who best exemplifies Gerber’s long-standing heritage of recognizing that every baby is a Gerber baby,” said Gerber Products Company President and CEO Bill Partyka. Lukas’ mother Cortney stated that she hopes her son will not be seen simply as a person with Down syndrome, but also as a funny, energetic child who loves music and socializing. “He may have Down syndrome, but he’s always Lucas first.”
• 70th “official” Lourdes healing confirmed: Although there have been thousands of reported miraculous healings at Lourdes, only a select few have been confirmed by the Catholic 5 Church. Recently, the 70th such “official” miraculous healing was confirmed. The recipient was Sister Bernadette Moriau, 79, of the Oblate Franciscans of the Sacred Heart of Jesus (France). Sr. Bernadette had suffered from “cauda equina syndrome,” a compression of the spinal nerve roots that can lead to permanent paralysis of the legs.
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