Bioethics, healthcare policy, and related issues.
Today’s news is that an amendment to the Republicans’ medical-residency defunding bill, prohibiting the use of any medical-education funding for “training in the provision of abortions”, was passed in the House by an overwhelmingly partisan vote. The event is not of great practical significance: this amendment is very unlikely to emerge from the Senate, and the bill is almost certain to be vetoed anyway. But it marks yet another front in the right wing’s ceaseless war on women’s healthcare, and yet another point-scoring display of how reckless – or simply antagonistic – they are willing to be with women’s lives.
The amendment is odd, though, and uglier even than it seems. It is so vaguely written that it is hard to figure out just how it would work if it were enacted, but its most likely interpretation would be literally deadly. It also extends the odious “conscience clause” for neglect of patients to every health plan, contract facility, professional group, doctor, nurse, or other staffmember at every medical school and teaching hospital in the nation, through a single sentence in this seemingly minor funding provision regarding training for one specific type of care.
The text of the amendment is here (scroll down). Recall this is an add-on to a larger bill; the parent bill seeks to defund all residency-level training in hospitals and medical schools nationwide, to force a new budget fight for training subsidies every year thereafter, rather than allowing block funding with less meddling. That bill by itself is part of the Republican assault on mainstream medicine – this proposed amendment is just a little anti-choice icing on the cake:
(d) Prohibition Against Abortion.–Section 340H of the Public Health Service Act (42 U.S.C. 256h) is amended by adding at the end the following new subsection:
“(k) Prohibition Against Abortion.–
“(1) None of the funds made available pursuant to subsection (g) shall be used to provide any abortion or training in the provision of abortions.
“(2) Paragraph (1) shall not apply to an abortion–
“(A) if the pregnancy is the result of an act of rape or incest; or
“(B) in the case where a woman suffers from a physical disorder, physical injury, or physical illness, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed including a life endangering physical condition caused by or arising from the pregnancy itself.
“(3) None of the funds made available pursuant to subsection (g) may be provided to a qualified teaching health center if such center subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.
“(4) In this subsection, the term `health care entity’ includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.”
The Meaning – Such As It Is – of the Amendment
The amendment is so badly worded that it’s not clear what it actually does. Section (k)(1) – the central defunding provision – prohibits any residency training money from being “used to provide any abortion or training in the provision of abortion”, but this is far from self-explanatory.
The first part is confused: the funding in question (defined by the parent bill, HR1216, which addresses “funding for graduate medical education in qualified teaching health centers”) is for post-graduate medical education (i.e., medical residency programs or the equivalent), not actual clinical care, and the infamous “Hyde Amendment” prohibits federal money for abortion care in the first place, so the “provide any abortion” provision here would seem to be superfluous at best.
The real issue – and the way the amendment has been packaged – is the denial of funding to train residents in abortion techniques, with an eye toward making abortion unobtainable by flooding the country with surgeons and OB-GYNs who are simply incompetent to provide this standard care. Since almost all residency training takes place in facilities receiving federal subsidies, this provision, if enacted, would mean the coming generations of doctors would receive no training at all in central aspects of women’s healthcare. (It might be possible to obtain such training at the resident’s own expense, but it’s not clear where that would even be possible, since this amendment would restrict almost all centers even capable of providing the training regardless of who paid for it. The only realistic alternative would be to go overseas – again, at the doctor’s own expense – and even that would not necessarily be availing, because it raises licensing questions and is not a practical option for all residents, even the ones who were willing to go to such lengths.) This is not a new tactic on the anti-choice right wing; at one point, Georgetown University’s Medical Center attempted to ban its GYN residents from obtaining abortion training anywhere, even on their own outside the program – and this when such training was still funded. But making it mandatory, inescapable, and nation-wide, is a step never before taken.
But it also seems that much of the intended impact of the amendment could be escapable. Here, the strange wording of the amendment provides a paradoxical loophole. Section (k)(2) allows exceptions for “an abortion . . . ” involving the usual grudging set of special horrors (rape, incest, death*) that some of the right wing are willing to overlook. But, again, notwithstanding the wording of the amendment, there is no funding addressed by this amendment or its parent bill that would “provide an abortion” under such conditions, since it does not provide funding for clinical care in the first place. So these exemptions for “an abortion”, if they do anything at all, must modify the prohibition on “training in the provision of abortions” – that is, Section (k)(2) apparently grants exemptions for federal funding for “training in the provision of an abortion . . .” in pregnancies involving rape, incest, or the threat of death. But of course all techniques used in abortion may be used in cases involving these exempted situations – so presumably federally-funded health centers can provide any kind of appropriate “training in the provision of abortions” for pregnancies involving rape, incest, or the threat of death – after which it’s the doctors’ own concern how they actually put that training to use!
At least, that’s how it reads, in strict logical terms. That may not be how it would be implemented, however. It’s clear from the legislative history of the amendment – the discussion on the floor before it was voted on – that, regardless of the grammatical deficiencies of its author, it was in fact intended to prohibit all training in abortion techniques.† Probably the courts would interpret it that way, even if that’s not what it says. So in practice the impact of the amendment is (a) to prohibit (with few exceptions) all abortions provided using medical-residency training funds – a category which does not exist, and (b) to prohibit all training in all methods of abortion regardless of likely application.
Scope of Ban
The result of all this, as noted, would be to permanently exclude competency in certain standard professional practices from the skill set of all US-trained physicians in all specialties, even including surgery, obstetrics, and gynecology. The skills in question, it should be noted, would almost certainly include, among others, the following methods most commonly used in pregnancy termination:
However, every one of those techniques is used for purposes other than abortion (most commonly, to remove dead tissue left by menstrual troubles, fetal death or an incomplete miscarriage). As noted above, the strict text of the amendment allows training in “abortion” techniques if it is not intended to facilitate abortion, but that’s obviously not what the author hoped for, so presumably it must be interpreted to include any technique that could be used in abortion, regardless of its common application. That would also include:
Impact of Ban
What would it mean if doctors were banned from all training in those techniques, for all purposes? Well, among much other harm, it would mean that any woman would face almost certain death from any of the following conditions, for which one the above techniques is the standard treatment:
It would also mean that women would have no access to standard or best practices under any of the following conditions, among others, because those treatments involve techniques that could be used in abortion:
And of course there’s the whole conspiracy-of-silence-about-birth-control thing (see ‡ below).
In short, this ban – if it were enacted and if it were implemented as intended, and as anticipated by its legislative history – would kill even more women in the US, in coming years, than are currently sacrificed every year from the current lack of abortion providers. We would see a return to death from emergencies in childbirth – even for women not seeking elective abortion – at levels equivalent to that in some Third-World countries (since, given that appropriate care would be banned under this amendment, women facing certain labor-related emergencies would essentially be getting Third-World care even though best-practices-level care could have been provided). Many more would suffer, some greatly, from the lack of access to perfectly ordinary and preferred treatments for conditions having nothing to do with abortion. By making it illegal for physicians in training to obtain the necessary skills to treat a wide range of common gynecological conditions, some of them life-threatening, this amendment simply condemns their future patients to death, permanent disability, and other suffering from conditions for which safe and effective treatments were available, and which are universally practiced in every other advanced nation, but which their US-trained doctors were prohibited from learning.
[NB: I am not a clinician. The information above is common knowledge from widely-available sources. I am confident it is accurate; it is likely incomplete – the full impact of this legislation is likely worse than I have been able to describe. For actual clinical guidance or practical healthcare purposes, be sure to consult a knowledgeable clinician who has a full range of professional skills (i.e., one who was trained at a non-misogynistic healthcare center before this ban was enacted).]
As with so much of Republican “healthcare”, it’s hard to imagine this policy could ever be taken seriously, or enacted in any nation that makes a claim to basic decency. But as so often has been the case in the past, it’s best to be prepared to be surprised by what levels of indecency Republicans are willing to reach.
As I noted, the amendment contains inherent loopholes that its legislative history makes clear were unintentional. It may be possible to circumvent some of its provisions nonetheless, by sequestering training in the relevant techniques to programs ostensibly aimed at other conditions: that is, teach vacuum aspiration as a treatment for dysmenorrhea, teach dilation and extraction as a procedure for removal of a dead fetus after incomplete miscarriage, etc. This could work, but only if the ban were confined to overt training in abortion as such, and not to training in any procedure that could be used for abortion. There is no question how vicious, and how hostile to the lives of women seeking abortion, the supporters of this bill are; it remains to be seen if they are willing to sacrifice innocent breeders, too, in their pursuit of death for rebellious hussies. Virginia Foxx, the sponsor of this amendment, is known for her bizarre and incoherent beliefs; I think it is really likely she just does not understand the implications of her own amendment, and it would not in the end be taken to the extreme of a complete ban on all gynecological surgical methods. Or would it?
At any rate, the stupid and ugly thing is not going to pass. But it is worth considering just how serious its sponsors were, and how far they were willing to go, to kill and punish women who sought control of their reproductive organs, through the medium of their own doctors – how far they were willing to go to make the ignorance that characterizes Republican health and science policy across the board in fact mandatory for those who refuse to adopt their values voluntarily. As in so many cases, denial of knowledge is both the substance of, and a weapon for imposing, the right wing’s values as punishment upon those whose crimes are knowledge and independence.
* Note that only death – not merely unendurable pain, permanent disability, or traumatic stress – is grounds for exemption. And, too, the section on the woman’s health repeats the phrases “physical disorder . . . physical injury . . . etc.” four times, making it clear that there is to be no sympathy extended to women whose traumas are psychological, whether or not life-threatening, because that’s not part of your “physical” health. Apparently the people who are convinced there is such a thing as a soul are not convinced there is such a thing as a mind.
† This raises another issue: the technique for “provision of abortions” in the case of medical abortions – RU486 or similar medications – is simply to conduct an appropriate examination and write a prescription. The “techniques” for doing so are used in the treatment of every condition, and the specialized knowledge involved in using this particular medication is trivial to acquire independently. So, again by the strict logical meaning of the text, either hospitals are prohibited from teaching residents even to write prescriptions – unless they argue that techniques that merely could be, but are not intended to be, applied to abortions prohibited by this amendment are therefore not prohibited in their non-abortion contexts. And that – again, if logical consistency means anything – would authorize all abortion techniques, medical or surgical, for the reasons I explained in the preceding paragraph. But these are Republicans we’re talking about.
‡ And of course the anti-choice nuts characteristically go so far as to define mere fertilization as a “pregnancy”, and I have no doubt that the supporters of this amendment would argue that its provisions apply not merely to the prescription of abortion by medication, but also to post-coital medical contraception such as Plan B. But . . . Plan B and its like are essentially equivalent to nothing more than high doses of ordinary prescription birth control, and in fact ordinary birth control pills can be used for that purpose without a separate prescription. So presumably this amendment would also prohibit either training in prescription of oral contraceptives, or at least mentioning the fact that they can be used for morning-after contraception. So far does the absurdity extend, if you take this policy seriously.
Latest really bad idea in the medical marketplace: doctors demanding that patients sign a “mutual privacy agreement” that grants copyright to the doctor of any reviews or commentary the patient may ever publish regarding that doctor – in other words, giving the doctor censorship rights over any evaluations the patient may make of the doctor, such as on doctor-rating Web sites.
Even worse, this agreement is apparently the product of some sort of doctors’ legal service called “Medical Justice”, whose purpose is to “(1) Deter frivolous malpractice claims; (2) Address unwarranted demands for refunds; (3) Prevent Internet defamation, and (4) Provide proven, successful counterclaim strategies to hold proponents of frivolous suits accountable” – which is to say, intimidate patients in order to give doctors a edge over them in any legal dispute. As Timothy Lee points out in the post linked above, their waiver policy is likely useless, and may be fraudulent: copyright assignment is usually granted in return for compensation, but given the somewhat coercive nature of this agreement (his dentist’s office manager actually threw him out of the office when he objected to it) and the lack of an employment-related justification for the claim on copyright, copyright experts he quotes say the agreement is likely unenforceable; also, the agreement claims to provide the patients with privacy guarantees that go “beyond HIPAA”, but in fact the particular (relatively benign) practices it covers are already banned under HIPAA, meaning the promises made to the patient in the agreement are not only worthless but actually false. But most patients won’t know those things, so the agreement still hampers their rights of expression even if it is unenforceable or even illegal. It gets worse: the agreement requires a “loser pays” financial penalty for any lawsuit (in contrast to standard US practice), making malpractice suits potentially financially ruinous for the patient, especially if the doctor’s insurance firm adopts the strategy of deliberately running up their own bills to create risk to the plaintiff (see Goals #s 1 and 4 above!); thus it hampers the patient’s ability to seek legal redress in addition to imposing on their rights to seek and share information.
It’s hard to count how many things are wrong with this: creating an abusive caregiver/patient relationship as a pre-requisite to treatment; chilling patient free speech and access to information about caregivers; cynically twisting completely unrelated provisions of copyright law to straitjacket the healthcare treatment environment; inequitable restrictions on patients’ rights and legal remedies for harm; not to mention just plain fraud and deception. What seems most unnerving to me is that such a bizarre and intrusive instrument (signing away your copyright?) has entered the healthcare environment at all.
More and more healthcare becomes just like any other marketplace: primum caveat emptor has become the contemporary Hippocratic credo, and deceptive, misleading, and grossly one-sided terms of service rule every aspect of the treatment process, from privacy to quality of care to access to caregivers to prescription drug availability to the ability to seek compensation for mistreatment. Though this particular “privacy” agreement is abusive in new and strange ways, the erosion of patients’ rights and remedies is far, far gone already. Medical “privacy” now means only that you must sign a form granting your caregiver and your insurance company the legal right to violate your privacy at will; access to treatment is deliberately hampered by adversarial gatekeepers who use your own medical history against you; mandatory arbitration for malpractice, on terms favorable to the insurance company or doctor, is now a common requirement of many health plans. You have no choice but to sign away all these rights, since the ubiquity of their implementation in the for-profit medical industry, and the lack of choices most patients have regarding treatment plans and costs, means even those lucky enough to have access to treatment at all usually have no access to treatment under respectful and empowering terms. What is shocking in this new approach is only how bold and shameless it is. What is sure is that there will be more of that coming.
So there’s a minor news bubble developing over the situation of Stanley Thornton, the “adult baby” recently profiled on a reality-TV show.Thornton lives an “adult baby” lifestyle – he dresses in baby-type clothes and a diaper, and has a nurse/baby relationship with a live-in friend who acts as a mother figure; she takes care of him and he is dependent on her, and they like it that way. There’s a surprisingly large community of such people, including the usual Internet chat rooms, Web sites, and so on. In addition, Thornton receives Social Security disability payments, due to a reported heart condition as well as taking multiple prescription medications. His caretaker is also on disability, for what reason I don’t know. They are not housebound, but neither is apparently employable; at any rate, neither has held a job in some time.
The problem is that they were incautious enough to go on a National Geographic TV special about “taboo” lifestyles. Senator Tom Coburn saw it and has now pressured the Social Security apparatus to investigate this particular person based on his appearance on the show. His ostensible grounds for complaint are that, from what he saw on the show, he believes Thornton appears to be capable of supporting himself:
Given that Mr. Thornton is able to determine what is appropriate attire and actions in public, drive himself to complete errands, design and custom-make baby furniture to support a 350-pound adult and run an Internet support group, it is possible that he has been improperly collecting disability benefits for a period of time.
The first thing to be said about this is that Coburn seems to have a very strange idea of what “disability” consists in, or what is or is not required to hold down a job. There is nothing about being SSI-eligible that implies you cannot “determine what is appropriate attire and actions in public”, or drive a car or take care of personal needs such as performing errands. And there is a vast gulf between being able to do all or any of that and being able to support yourself in a capitalist economy (to say nothing of one in a years-long recession with close to 10% unemployment). Coburn seems to harbor both a very condescending view of what disability is, and a typically hard-hearted view of what self-reliance requires: the disabled are essentially children, mentally non-competent, cannot even choose their own clothes, and certainly cannot act independently in public, drive, or run errands unsupervised; at the same time, anyone who’s not actually bedridden ought to earn their own living or die trying. Coburn’s worldview seems to be taken from a Dickens novel: spastic lunatics chained to the walls in Bedlam, and starving cripples begging in the streets. In addition, Coburn’s apparent belief that anyone who can cobble up a chair out of 2x4s (I’ve seen pictures of Thornton’s furniture; he’s not exactly Sam Maloof) should be working as a full-time woodcrafter is rather absurd, and the idea that maintaining a Web site imputes the ability to earn a living identifies someone who is clearly struggling to grasp the nature of the intertubes.
But for all its confusion, Coburn’s statement at least seems to focus on the right issue: it’s true that Thornton is not qualified for SSI disability payments unless he is actually disabled and partly or wholly unable to support himself, and it’s not unreasonable to ask whether that is true. Given that Thornton does offer his furniture plans for sale, and he and his friend apparently also offer a paid sleep-over service catering to other adult babies, he apparently does have some income and there may be a legitimate question about his qualifications for disability. As far as it goes, that’s not an unreasonable question to ask.
What gets me about this is that a senior US Senator took the time to pursue an inquiry against one single individual under a program that accounts for close to $13 Billion per year, or more than 20% of the entire national budget. Does he really think that is a productive use of his time? More to the point, was this really prompted by a suspicion that this one disabled guy might have some illicit sturdy-furniture income he hasn’t been reporting, and Coburn is determined to find out how much that is?
It seems obvious that Coburn focused on this case not because this SSDI recipient has made two or three pieces of exceedingly simple furniture (Coburn’s letter notes that one basic chair took him a year and a half just to design – hardly qualification for gainful employment), but because “his choice to live as an adult baby violates societal norms”, as Coburn himself puts it. In fact, although Coburn’s letter ostensibly focuses on Thornton’s possible ability to hold a job, it repeatedly mentions his lifestyle. More than that, Coburn’s official Senate Web page touts the same letter without a single reference to actual qualifications for disability; instead, it proudly notes that Coburn is “requesting an investigation of how people choosing certain lifestyles – focusing specifically on those who live their lives role-playing as ‘adult babies,’ are able to get taxpayer-funded Social Security Disability Insurance (SSDI)”. In short, Coburn is using his position as ranking Republican on the Senate Sub-Committee on Investigations to bring down the heat on “people choosing certain lifestyles” – for which the issue of possible income on the side is only a convenient pretext. And the crowing and mockery this has already generated on the usual right-wing Web sites can easily be imagined.
It’s hardly worth saying that this is ugly and mean-spirited, or that it makes little sense if taken at face value. Whether or not this person is disabled has nothing to do with how he chooses to dress or what kinds of emotional relationships he values. And the nonsense about driving, running errands, or designing furniture is pathetic as an excuse for a challenge to what is apparently a documented medical disability. Coburn has found someone whose lifestyle he disapproves, and is taking advantage of the fact that it’s unusual and off-putting to many people to harm that person while grandstanding on the issue to promote his anti-social, anti-government ideology.
It’s not like he wouldn’t have been glad to cut anybody else’s Social Security benefits (Coburn has consistently voted against virtually every aspect of Medicare, Medicaid, SCHIP, and other healthcare programs, against the SSI “lockbox”, and in favor of privatizing Social Security). But finding someone in the program he can despise, and then inviting (and getting, in spades, from the right wing) open mockery of that person’s lifestyle as a lever for attacking their health benefits, is a right-wing two-fer: hurting people who aren’t like them, while casting social welfare as unnecessary or a fraud. The message, in political or social terms, is clear enough. But the message for the disabled, and those with alternative lives, is also clear: if you’re disabled, don’t be weird, because it makes you a target; and if you’re weird, don’t expect help if you’re also disabled, because you don’t deserve it.
Amanda Marcotte (@AmandaMarcotte) asks on Twitter:
Why oh why is our country in the grips of a sex panic? I just don’t get it.
My response was:
Obama backlash was greenlight for all wingnuts; every hate/fear is now OK, unhidden, synergistic.
I’d like to de-Twitterize and unpack that a bit.
Here’s a post submitted to “Ask the Ethicist” by Christopher:
I am gay and for 20 years, I have had a best friend and mentor who is also gay. Besides regular friendship, I have taken care of him when he’s sick, staying at his house, getting him to the doctor. But we do not live together. There has never been a sexual component to the friendship.
He is getting ready to retire. As part of his retirement package, he can designate a domestic partner to receive a payment of over $150,000 a year after his death. He has asked me if I want to do the paperwork to be his domestic partner. As I said, we do not and have never had a sexual relationship. I do not live with him. Is creating this arrangement unethical?
Thanks, Christopher, for your question. It’s an interesting situation; let’s see what readers have to say about it.
My response is below in comments. Readers: feel free to join the discussion!
(And feel free to post your own questions to “Ask the Ethicist” – see link in top right-hand sidebar!)
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