In brief, federal conscience laws were defined favorably under President Bush, rescinded by President Obama, largely reinstated to the Bush standards by President Trump (with some definitions that pro-lifers liked), and now, once again, are being reversed by the Biden administration.
As reported in LifeNews, “When Congress passed the Affordable Care Act, it prohibited discrimination on the basis of ‘sex.’ Several years later, the Obama administration redefined ‘sex’ to mean … termination of pregnancy.” The Trump Rule rescinded that definition. The new Biden Rule reverses Trump’s definition.
The AAPLOG seminar earlier this year predicted that could occur. This blog reported that AAPLOG warned that the Equality Act would reconfirm the Obama definition of “discrimination on the basis of sex” as 1. gender identity, 2. sex stereotyping, and 3. termination of pregnancy. However, we now see that the Office of Civil Rights is working to stymie conscience rights by a mere Rule change.
These concepts are not thoroughly explained in this article, but for any reader who desires to better understand what is happening in the progression of the dilemma, some good references are below in the footnotes.
How will this affect Ky’s medical providers?
In brief, follow the money. AAPLOG’s Dr. Donna Harrison noted that the Equality Act would apply to every entity that receives federal funding. If a doctor accepts a Medicaid patient but refuses to perform an objectionable procedure such as abortion, the patient can sue, but under the Trump Rule, the doctor had legal recourse.
Nevertheless, Ky’s ‘ace in the hole’ is our Time Tunnel 1974 Healthcare Worker Conscience Law that forbids publicly owned health care facilities to perform abortions, and forbids privately owned facilities or providers (doctors, nurses, others) to be required to, or held liable for refusal to, perform abortions.
The 1974 law defines numerous aspects of ‘unlawful discriminatory practice’. In 2020 and 2021 Sen. Stephen Meredith (R-Breckinridge, Edmonson, Grayson, Hart, LaRue, Meade) fought to pass a Medical Conscience bill that expanded that legislation to include procedures beyond abortion, healthcare payers among those protected, and would permit the injured party to sue in court.
The 1974 Law states that public funds cannot be denied to any medical providers who refuse to participate in abortion. Forty-seven years ago no one foresaw the need to mention gender assignment surgery as a category of medical conscience objections. As KyRTL did this year and last year, we will again support Sen. Meredith’s bill in 2022.
His bill was challenged and slowed down both years by Sen. Morgan McGarvey (D-Jefferson-Part) through amendments requesting to expand those covered to include members of the public service professions.
Sen. McGarvey requested these and other changes:
- Before the words ‘any medical practitioner’ insert ‘any Legislative Research Commission employee, leadership staff, security personnel, doorkeeper, state park employee, or Ky state trooper providing assistance in the Ky State Capitol, Capitol Annex, or Annex grounds during any and all legislative sessions or interim committee meetings of the Ky General Assembly.’
In other words, a doorkeeper could refuse to listen to a meeting or discussion of any topic he conscientiously objected to, equating his dilemma with a doctor's whose conscience tells him not to perform an abortion.
Sen. Westerfield addressed this confusion by suggesting an amendment to confine the legislation to particular healthcare services, among other issues. But any bill must be promoted in a timely fashion to make it across the finish line under the constraints of the very brief Regular Session of the Ky Legislature.
Meanwhile, we may ask: How will the new Biden Rule be applied in Ky? Can it override our law? Without a doubt, in the current national climate, it's likely that our pro-life state must aggressively insist on what we have so far accomplished.
To that end, please assist KyRTL and our pro-life partners as we work toward passage of the Constitutional Amendment Yes for Life, HB 91 bill!