Memo: New "Conscience" Provision in Education & the Workforce "Anti-Gag" Bill (H.R. 2043)

To: Interested Parties
From: Joanne L. Hustead, Director of Legal and Public Policy
Subject: New "Conscience" Provision in Education & the Workforce "Anti-Gag" Bill (H.R. 2043)
Date: June 21, 1999

Last week the Employer-Employee Relations Subcommittee of the Committee on Education and the Workforce marked up a series of patient protection bills. When the subcommittee considered H.R. 2043, the bill that would ban "gag" clauses in provider contracts, the subcommittee adopted an amendment that undermines the very protections the anti-gag bill would put in place.

This amendment allows plan sponsors (employers) and insurance companies to gag health care professionals whenever the employer or the plan says it has a "religious" or "moral" objection to what the health care professional might talk about. It would operate as an exception to the general ban on plans gagging health care professionals. Health care professionals could be prevented from discussing essential treatment options -- from family planning services to infertility services to abortion services to ways to prevent the spread of HIV.

The proponent of the amendment stated that its purpose was to ensure that individual medical professionals could not be required to discuss treatment options to which they as individuals objected. But the amendment actually does something altogether different.

Unfettered communication between health care professionals and their patients is essential, especially when women's reproductive health is at stake. The relationship between a health care professional and her patient must be based on trust and open communication. Indeed, an open and complete discussion of all treatment options is an essential element of the informed consent process because patients cannot give informed consent unless and until all options (including their risks and benefits) have been fully explained. Putting any restrictions on this crucial dialogue would undermine not only the professional/patient relationship, but the informed consent process as well.

This amendment is dangerous and unprecedented. There is no similar provision in federal statute. And its enactment into law as part of managed care reform would mean that women in particular would get second class medical care. We are urging Members of the Committee to support efforts to strike this language from the bill.

posted 6/23/99