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Liberty, Justice, and the “Conscience Clause”: Thoughts on or Around the 4th of July

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I always try and spend each 4th of July in my hometown of Ashland, Oregon, where we celebrate in traditional fashion with a small-town parade, booths in the park, and an evening fireworks display. It is a great display of patriotism and community spirit. The Lions, Elks, and various other animal-avatar civic clubs sell food to raise funds for worthy causes, nonprofit groups solicit donations, and aspiring politicians take to the stump. I’ve been enjoying this throughout my life, with the exception of absences during my overseas duty tours and other professional obligations, and it is wonderful to see how it has transformed over the years.

Each year that I return, I find our small town of 20,000 to be diversifying at an ever-increasing pace. The public school system, essentially 100% uniracial when I attended it, has embraced a diverse student body in both race and ethnicity throughout all grades. Our 50-year-old sister-city relationship with Guanajuato, Mexico, was the theme of this year’s Fourth of July parade. Our local university has become a magnet for students from Asia, particularly South Korea. Our town of 20,000 now boasts three synagogues and an Islamic prayer center. Hispanic surnames are increasingly common in our community and throughout Oregon, and there are now 10 cities in the state where individuals with Hispanic surnames represent more than 20% of the population.

Oregonians consider our state to be progressive, ahead of the curve on social issues and welcoming to all. Yet the state of Oregon is the only state in the union that still has a jury system that allows for non-unanimous decisions in major criminal cases. This constitutional amendment was passed in 1934, during an age of Jim Crow and anti-immigrant fervor, after one juror held out against convicting a Jewish man of first-degree murder. The amendment was specifically designed to limit the influence of racial, ethnic, or religious minorities in jury decisions. Although a bill was introduced in the 2019 Oregon legislative session to allow a vote to overturn the non-unanimous jury amendment, it was not acted on, despite broad support. The only other state in the union to allow non-unanimous convictions, Louisiana, abolished this constitutional provision in 2018.

How can we reconcile our welcoming attitude toward diversity with this overtly discriminatory constitutional amendment? Simple. For one, the increasing diversity of a population does not necessarily mean that we truly welcome newcomers—subtle and institutional forms of discrimination still exist. But more to the point, mistakes of the past, particularly when they are enshrined in constitutional language, are exceedingly difficult to eradicate. And here I am afraid we as a nation are on a path toward making several mistakes that we may find both deleterious in the short run and quite difficult to reverse in the longer term. Three such moves directly affect the practice of psychology: The so-called “Conscience Clause” recently promulgated by the administration, an ongoing attempt to insert another “Conscience Clause” affecting the provision of healthcare services to LGBTQ+ persons, and the ongoing attempts to abolish the Affordable Care Act (ACA).

The war against the ACA heated up again this week when the 5th circuit court in New Orleans heard arguments from certain state attorneys general and the US Department of Justice on whether the ACA was constitutional. The main arguments were technical and centered on issues of whether or not the removal of the individual mandate (forcing individuals to either participate in or purchase health insurance or pay a fine), abolished by the Congress in 2017, made the entire act unconstitutional. Let’s not focus on the legal nuances, which are quite eloquently explained in a Health Affairs blog. Instead, let’s look at the consequences of overturning the ACA. You will recall in 2017 that the Congress attempted unsuccessfully to do this. I reviewed that effort at the time, but am still amazed at the meretricious nature of the alternate health care bill—one that spent 7 of its approximately 130 pages exempting tanning bed salons from the consequences of the bill. Then as now, if the ACA is repealed, there is not—I repeat NOT—any viable alternative to take its place.

The societal penalties for abolishing the ACA remain much as they were in the past, but they will be exacerbated as many more Americans have sought coverage under the act. I’ve written about Obamacare extensively, and this column isn’t meant to be a rehash of what I’ve previously said. Suffice it to say that the ACA provided insurance protection to over 21 million formerly uninsured Americans. In those states that chose to accept Medicaid funding from the federal government to expand services to those newly eligible for Medicaid services, a variety of benefits have accrued, including enhanced health and economic benefits.

The Kaiser Family Foundation recently reviewed the benefits of Medicaid expansion—in brief, their findings were consistent and consistently unsurprising. Medicaid expansion improved coverage and reduced rates of uninsured patients—particularly those in greatest need. Health care utilization went up, self-reports of health status improved, and the data, while not definitive, suggested a link between expansion and overall health outcomes (such relationships generally take more than a few years to show these links definitively). Perhaps most importantly, positive economic effects of expansion were evident—while federal Medicaid spending did increase, state spending was stable, hospitals had fewer losses to uncompensated care, and effects on the broader labor market were either positive or neutral. In other words, the main objection to the ACA (that it would be a ‘job-killing’ bill) was decidedly not borne out.

Overturning the ACA would result in many negative outcomes. The 10M+ citizens who buy ACA individual coverage could lose their plans, and most of these citizens are low-income and require assistance in getting insurance of any kind. Approximately 13M patients would be disenrolled from Medicaid, which as we have discovered provides manifold benefits—again to, mostly low-income patients. Perhaps most importantly for those of us in mental health professions, the pre-existing condition clause would be eliminated, meaning that 52M citizens would be at risk for losing their insurance due to pre-existing conditions.

You can argue for or against the ACA on constitutional grounds—the center of the case now in front of the 5th Circuit Court. Such pros and cons form the nexus of our democracy and the ability to engage in legal or legislative initiatives to promote a particular point of view must be protected. But it is much harder to argue against the ACA in terms of its positive benefits. Here the burden must be on opponents to demonstrate that the law has had negative effects, particularly when it is eminently clear that expansion of health care benefits broadly helps society. I have on many occasions raised the example of not only the superiority of healthcare delivery in other developed nations but the broader social benefits of adopting proactive “social network” policies. In view of the current threat to the ACA, it is time to do so again.

The most recent example demonstrating the overwhelmingly positive benefits of addressing social determinants of health comes from Spain, in the autonomous Basque region in the northwest portion of that nation. Approximately 10 years ago, in the face of rising healthcare costs and declining rates of coverage, the Basques pushed through broad reforms to their healthcare system. In many ways, these reforms accomplished what psychologists and others are attempting in the U.S. in championing integrated healthcare delivery systems. The Basque integrated healthcare system is described in detail here.

The healthcare system implemented by the Basques in 2010 had three main foci: Integrated governance that shared responsibility between administrators, healthcare providers, and patients; a population-health based approach involving social and public health actors; and a focus on integrated care delivery. According to the Health Affairs analysis, this approach has in only nine years been proven a success, with diminishing burdens of chronic illness and a renewed focus on healthy lifestyles. As in the Baltic states, where a focus on social determinants has resulted in dramatic reductions in healthcare costs, the Basques have learned a fundamental lesson—one that continues to elude U.S. policymakers.

But is not only the ACA that we as a profession should be concerned about. In the past few months, the administration has published an update to the “Conscience Clause,” expanding previous rulings that have allowed healthcare providers to decline to provide services that are contrary to their personal religious beliefs.

Although the main thrust of this rule focuses on the provider’s right to decline to perform contraceptive or abortion services and to a much lesser extent physician-assisted suicide, people may be unaware that it also extends this protection to mental health services, specifically, youth suicide prevention services (see page 5 of the rule). People may be similarly unaware that not only does this rule protect those objecting on religious or moral grounds from providing such services, it enables them to refuse to refer for such services.

HHS, in defending this rule, noted that conscience clauses were already enshrined in law and regulation. No provider is forced to perform abortions or assist in suicide if they choose not to—and in states allowing physician assisted suicide legislation is already explicit on the ability of a provider to “opt-out” of this very rarely used procedure. So the rationale for this new rule seems shaky. The administration’s argument for doing so rests in large part on a survey of healthcare providers (see page 25 and subsequent) that suggested a significant minority of healthcare providers had felt pressured to perform or refer for contraceptive services or abortions. This survey, however, was of practitioners affiliated with faith-based institutions, and thus may not be representative of the provider population at large.

Why should psychologists be concerned? After all, we do not provide abortion or contraceptive services (though some of use are involved in reproductive health counseling). We also have an ethical code that specifically notes that if we do not feel capable or competent of treating certain patients it is our obligation not to—but that it is our obligation to refer such patients. Thus, our code might be in direct conflict with federal rules allowing providers the ability not only to treat, but even refer, some patients. Ask yourself—would you feel comfortable refusing to treat a patient because their religious beliefs were opposed to your own? You might, after all. A non-Christian psychologist might not feel capable of working with, for example, a Christian who believes that all non-Christians are eternally damned. But would you feel comfortable in not referring such a patient? I know I would not. As with any other patient, I would attempt to provide referral to others with a deeper understanding of the patient’s philosophy. Steadfast adherence to my personal religious and moral convictions should not get in the way of finding care for patients, regardless of how strongly they conflict with that patient’s beliefs.

The referral question takes even greater valence with a separate version of the conscience clause now being promoted by the administration modifying section 1557 of the ACA. The proposed rule would eliminate certain protections for patients with HIV disease, transgendered patients and others, and would allow providers to refuse treatment to LGBT patients on the basis of “conscience.” It would allow insurors to modify insurance benefits protecting patients with HIV or LGBT patients, and it would weaken the ability of patients to seek translation or interpretative services.

In promoting this rule change, the administration again cites the burden of complying with existing law, as well as to address “certain legal concerns”. The HHS proposed rule removes protections already enshrined in civil rights legislation. It does so on the basis of a preliminary injunction issued by an appeals court in 2016. Not being an attorney, my understanding of preliminary injunctions may be incomplete, but while they do apparently have the force of law, they are most likely to be issued if the court decides that the matter will be resolved in the fashion suggested by the preliminary injunction. It seems premature at best to force a change in the rule when the final legal standing of the ACA has not been decided, particularly one that withdraws protections from a certain class of patients.

Our profession has not fared well when we choose to ignore pressing societal needs. We have, for example, been seen as entirely abandoning certain patients with psychological disorders—the severely and persistently mentally ill. In spite of the longtime reminders of psychologists like the late Fred Frese, we as a profession have essentially abandoned the treatment of these patients—and have been peripheral players in assisting this highly needy population ever since. Doing so not only disserved us as a profession, it provided a disservice to SPMI patients, essentially relegating them to “medication only” treatment regimens when we know full well that psychological and psychosocial interventions are a key component of sustained remission.

It is fine for us to voice abstract or moral support for the rights of minorities—such support does have meaning. But unless we are all advocates in more concrete ways we will never be seen as true allies. I urge you to contact your elected representatives as well as submit commentary to HHS on the proposed “conscience rule”—whether in support of the proposed changes or opposed, our profession is directly affected and our voices should be heard. Submit comments here.

Addressing social determinants of health or the needs of minority patient populations have been construed as a liberal versus conservative issues. They are not. To improve social conditions that lead to adverse health outcomes is neither a liberal or conservative ideal nor is it Republican or Democrat party plank. It is, as the rest of the world repeatedly demonstrates—economically and socially—just smart.

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