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Committee debates Kalispell representative's medical ‘right of conscience’ bill

by MARA SILVERS Montana Free Press
| February 1, 2023 12:00 AM

A bill that would allow medical institutions, providers and other health care employees to deny services based on their “ethical, moral, or religious beliefs or principles” was the subject of intense debate Monday during an initial committee hearing, setting up a conflict over rights of providers and patients.

Despite its late scheduling Friday afternoon, which upset House Democrats, House Bill 303 received more than two hours of testimony from 10 proponents and 22 opponents speaking to lawmakers on the House Judiciary Committee.

The bill, sponsored by Rep. Amy Regier, R-Kalispell, drew support from individual Montana health care providers and the conservative religious groups Alliance Defending Freedom, the Montana Family Foundation and the Montana Catholic Conference. If adopted, proponents said, the bill protects freedom of speech and religion when medical providers have an objection to providing certain services, including abortion and gender-affirming health care for transgender patients.

“I have been practicing for 20 years without doing a single abortion. I would like to continue doing so,” said Dr. Shaun Gillis, a obstetrics and gynecology specialist at Bozeman Health speaking on her own behalf. “Currently, my hospital doesn’t provide that procedure, but there have been discussions of doing that moving forward, and I’m a little bit concerned what that might mean for my employment status if I did not wish to provide those procedures.”

Regier and other proponents said repeatedly that HB 303 focuses on declining services rather than turning away patients based on a provider’s personal judgment. But health care providers, medical industry groups and LGBTQ patients said that distinction was not clearly spelled out, calling the bill a “get-out-of-jail-free card” for employees to discriminate against patients. They urged lawmakers to table the bill.

“If I’m in an accident or medical emergency, with a law like this in place, a medical care provider could raise the right of conscience card, disregard their Hippocratic oath, and refuse to treat me,” said Ezekial Cork, a transgender man and Missoula resident who testified against HB 303. If that decision led to his death, Cork continued, the health care provider who refused services “would apparently sleep well at night while those I left behind were left to grapple with their grief.”

As written, the bill says that “a health care institution or health care payer may not be required to participate in or pay for a health care service that violates the health care institution’s or health care payer’s conscience.” A later section adds that a health care institution or provider would not be liable for refusing to participate or pay for services, and that those actions could not be “the basis for any discrimination, discipline, or other recriminatory action against the health care institution, health care payer, or any personnel, agent, or governing board.”

The bill would also require facilities to obtain written consent from employees that they are willing to “perform, facilitate, refer for, or participate” in an abortion before they schedule or direct an employee to participate in abortion services, a more strict provision than what currently exists in state law.

Industry opponents included the Montana Medical Association, Montana Hospital Association, Montana chapter of the American Academy of Pediatrics, the Montana Nurses Association, the Montana Primary Care Association, Planned Parenthood of Montana and Blue Mountain Clinic, all of whom said the bill would undermine the medical profession’s obligation to act in the best interest of patients. The ACLU of Montana and the Montana Human Rights Network lodged additional opponent testimony, saying HB 303 would lead to patients being denied care “with impunity.”

Opponents, including a medical ethicist, also said the bill was unnecessary given the existing protocols health care providers have for filing conscience-based objections, such as hospital ethics committees.

“Rights of conscience can exist and do exist in health care, but must be balanced with protections for patient rights. They cannot exist carte blanche without qualification or as a get-out-of-jail free card,” said Dr. Nathan Allen, an emergency physician at Billings Clinic and one of three health care ethics consultants in Montana.

The American Medical Association Code of Ethics, Allen said, allows providers to object to services based on moral and religious grounds but stipulates that patients must be treated in emergencies, receive informed consent about their medical care, and are protected from discrimination. Those checks and balances, he continued, don’t exist in Montana’s proposed law.

“Patient protections are absent from HB 303. There are not guardrails on what types of ethical, moral or religious beliefs ‘conscience’ can be based on. No explanation can be required other than simply stated ‘conscience,’” Allen said. “This creates a discrimination loophole, which would allow health care workers, organizations and payers to decline to provide care to a patient because they are a man, a Native American, have HIV, committed a crime or a member of a different religious faith.”

Stephanie Nichols, a proponent of the bill speaking on behalf of the Alliance Defending Freedom, told lawmakers that existing federal law guarantees access to emergency health care, which supersedes any state law. She also said other states with similar right of conscience laws, including Illinois and Mississippi, have not seen the flood of lawsuits opponents suggested HB 303 would cause in Montana, again saying the bill is about objecting to services, not discriminating against patients.

Rep. Zooey Zephyr, D-Missoula, posed a question to Regier, the bill sponsor, about that argument.

“For some of us, myself included, who we are is inextricable from the services we need,” said Zephyr, a transgender woman. If someone, she continued, “has a huge objection to providing gender-affirming care, would they be able to deny — whether they are a receptionist, a nurse or a doctor — deny gender-affirming care for Montanans?”

“This bill is about the procedure, not the person,” Regier replied.

“In this case, providing gender-affirming care would be something that they would be able to deny?” Zephyr asked again.

“It’s the procedure, not the person,” Regier repeated. “That’s a broad term.”

“I’ll take that as a yes,” Zephyr said.

The committee did not vote on the bill Monday.

Reporter Mara Silvers can be reached at msilvers@montanafreepress.org. The Montana Free Press is a nonprofit newsroom based in Helena. To read the article as originally published, click here.