Re: Wisconsin Assembly Bill 67

Testimony before Wisconsin Senate Committee
on Health, Children, Families, Aging and Long-Term Care
October 7, 2003

Mary A. Klaver
Legislative Legal Counsel for Wisconsin Right to Life Inc.

In today's world, more and more health care providers find that some health care practices raise serious moral concerns. Social, legal, and medical developments involving abortion, assisted suicide, euthanasia, withdrawal of feeding tubes for the purpose of causing a person's death by starvation or dehydration, human embryo destruction, human embryonic stem cell research and tissue transplants from aborted babies have put health care providers in the center of some of society's most controversial moral dilemmas. As medical technology evolves, the ethical dilemmas for Wisconsin's health care providers will continue to grow.

The federal government and most states have enacted "conscience clauses" -- statutes intended to protect the right of health care providers to refuse to provide or participate in certain procedures to which they have moral or religious objections. Most conscience clause provisions were adopted between 1973 and 1982, when the courts were broadly defining a new and very controversial constitutional privacy right to abortion. Consequently, most conscience clause statutes only protect the right to refuse to participate in an abortion. Some states also protect the right to refuse to participate in sterilization, contraception or artificial insemination. One state (Wyoming) covers euthanasia. Only one state statute (Illinois) provides conscience rights protection for all medical procedures.

The majority of opposition to AB 67 comes from the pro-abortion lobby, most notably Planned Parenthood, the state's largest abortion provider. Its opposition to AB 67 is no surprise since the pro-abortion movement has been involved in a national effort to force health care providers to participate in abortion. For example, in Alaska, the state supreme court ruled that some community hospitals must perform abortions against their will. In Connecticut, a certificate of need was denied to a proposed outpatient clinic that refused to perform abortions. Similar pro-abortion successes have occurred in other states. In Congress, attempts have been made by the pro-abortion lobby to force medical programs to train students to perform abortions or lose accreditation. Assembly Bill 67 would provide protection for health care professionals and facilities should pro-abortion activists in Wisconsin attempt similar tactics.

Current conscience clause statutes

Wisconsin's current conscience clause statute, s. 253.09, has been on the books since 1973. Section 253.09: (1) protects the right of a hospital to refuse to admit any patient or to allow the use of the hospital facilities "for the purpose of performing a sterilization procedure or [an abortion]", (2) protects the right of a "physician or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital" to refuse to participate or assist in a sterilization procedure or an abortion, if the objection is in writing and based on moral or religious grounds, (3) prohibits "any disciplinary or recriminatory action" against a "physician or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital" who refuses to participate or assist in a sterilization procedure or an abortion, (4) protects "any person" from discrimination in employment, student status or staff status on the "ground that the person refuses to recommend, aid or perform procedures for sterilization or [abortion], if the refusal is based on religious or moral precepts", and (5) protects individuals and entities who receive "any grant, contract, loan or loan guarantee under any state or federal law" from being required to participate in various ways in a sterilization procedure or an abortion if this would be contrary to the religious beliefs or moral convictions of the individual, the entity or the personnel of the entity.

Also, under Wisconsin law, civil immunity is provided for hospitals and hospital employees (s. 253.09), physicians (s. 448.03 (5) (a)) and nurses (s. 441.06 (6)) for any civil damages resulting from a refusal to perform a sterilization procedure or an abortion, if such refusal is based on religious or moral precepts.

No one seems to know who has enforcement responsibility for s. 253.09, the primary conscience clause statute. Several years ago, Wisconsin Right to Life asked the Department of Health and Family Services for advice on the enforcement responsibility for this statute. According to the Department Legal Counsel, no single agency is responsible for enforcement of this statute.

How AB 67 would work

Assembly Bill 67 clarifies and extends the current protections under Wisconsin's conscience clause law by doing the following:

1. Extending the protection of Wisconsin's current conscience clause law to acts involving the deliberate destruction of human life such as killing in vitro human embryos, use of tissues or organs from aborted babies, causing someone to die of starvation or dehydration, assisted suicide, and euthanasia.

2. Clarifying that each of these conscience clause laws grants protection from employment discrimination, professional liability and civil liability.

3. In cases that are not covered by the employment discrimination laws, granting persons whose conscience rights are being violated the right to sue for injunctive relief and damages.

4. Creating a conscience clause law for pharmacists that provides protection and remedies for the same activities covered for the other health care professionals.

Under AB 67, health care professionals can only refuse to participate in the 8 specified activities, 7 of which involve the willful destruction of human life. These activities are:

1. A sterilization procedure.

2. An abortion, as defined in s. 253.10 (2) (a).

3. An experiment or medical procedure that destroys an in vitro human embryo or uses cells or tissue derived from the destruction of an in vitro human embryo.

4. An experiment or medical procedure on an in vitro human embryo that is not related to the beneficial treatment of the in vitro human embryo.

5. An experiment or medical procedure on a developing child in a natural or artificial womb, at any stage of development, that is not related to the beneficial treatment of the developing child.

6. A procedure, including a transplant procedure, that uses fetal tissue or organs other than fetal tissue or organs from a stillbirth, spontaneous abortion, or miscarriage.

7. The withholding or withdrawal of nutrition or hydration, if the withholding or withdrawal of nutrition or hydration would result in the patient's death from malnutrition or dehydration, or complications of malnutrition or dehydration, rather than from the underlying terminal illness or injury, unless the administration of nutrition or hydration is medically contraindicated.

8. An act that intentionally causes or assists in causing the death of an individual, such as by assisted suicide, euthanasia, or mercy killing.

For your convenience, I am attaching a copy of the current conscience clause laws in Wisconsin and a copy of how these laws would read as amended or created by AB 67.

AB 67 does not cover routine medical care

The opponents of AB 67 are FALSELY claiming that this legislation would permit health care professionals to refuse to provide routine medical care and treatment to patients. AB 67 is FALSELY portrayed as applying to routine medical care such as pain medication, AIDS medication, prenatal care, fertility treatments, anti-depressant drugs and anti-seizure medications.

AB 67 does not apply to routine medical care and treatment. There is no conscience right for participation in any medical care or treatment that is not included in the list of 8 protected conscience activities. There is simply no activity that covers routine care and treatment.

AB 67 does not apply to prenatal care. The original bill had 6 protected conscience activities. Some opponents of the bill may have mistakenly interpreted the original 3rd activity to cover prenatal care. The original 3^rd activity read as follows:

"3. An experiment or medical procedure involving any of the following:

a. The destruction of a human embryo.

b. A human embryo or unborn child, at any stage of development, in which the experiment or procedure is not related to the beneficial treatment of the human embryo or unborn child."

This language was clarified in Assembly Substitute Amendment 1 ("ASA 1", the current version of AB 67) and expanded into 3 separate activities which now read as follows:

"3. An experiment or medical procedure that destroys an in vitro human embryo or uses cells or tissue derived from the destruction of an in vitro human embryo.

4. An experiment or medical procedure on an in vitro human embryo that is not related to the beneficial treatment of the in vitro human embryo.

5. An experiment or medical procedure on a developing child in a natural or artificial womb, at any stage of development, that is not related to the beneficial treatment of the developing child."

This new language in ASA 1 clarifies the original intent of the bill by (1) deleting the word "involving" because it is ambiguous, (2) using the word "on" to clarify that the experiment or medical procedure has to be "on" the in vitro human embryo or "on" the developing child, not on the pregnant woman, (3) specifying that the conscience right regarding a human embryo only relates to an "in vitro" human embryo, that is, one who is living outside of a woman's body, or cells or tissue derived from one of these embryos, such as human embryonic stem cells, and (4) substituting "developing child in a natural or artificial womb" for "unborn child" to cover current technology on the development of artificial wombs.

There is no language in the revised conscience activities that applies to prenatal care itself or the routine care of a woman who is pregnant, such as anti-seizure medications. Also, nothing in AB 67 would interfere with ethical fertility treatments that are designed to help a woman have a child. The provisions relating to an in vitro human embryo merely protect a health care provider from being forced to destroy an in vitro human embryo or to participate in destructive research on an in vitro human embryo. AB 67 would not cover any medical procedure intended to benefit the in vitro human embryo.

AB 67 does not apply to pain medications. The conscience right on euthanasia and assisted suicide only apply to an act that intentionally causes or assists in causing the death of an individual. Pain medication is given for the purpose of relieving pain, not to cause death. No action that is intended to treat or relieve a patient's condition or symptoms can be construed to fall under this conscience right.

Transfer issue

The opponents of AB 67 assert that if a physician is unwilling to participate in a protected conscience activity, then the physician should be required to transfer the patient to another physician who is willing to comply with the patient's request. The problem with this assertion is it that presumes a duty on the part of the physician to find another physician who is willing to destroy human life, rather than simply transferring care to another physician. Physicians who object on moral grounds to participating in activities involving the willful destruction of human life should not be forced to assist the patient in finding another physician who is willing to participate in a life destroying activity. To do so would make the physician an accomplice in the wrongdoing.

It is the responsibility of the patient, or a legal representative of the patient, to find a physician who is willing to comply with a patient's request for a life destroying activity. The physician exercising his or her conscience rights would only be obliged to allow the physician chosen by the patient or the patient's legal representative to immediately assume the care of the patient and to assure the prompt transfer of the appropriate medical records of the patient to that physician.

There is no general law in Wisconsin requiring physicians unwilling or unable to perform a particular medical procedure to refer their patients to another physician who is willing and capable of performing the procedure. Nor are physicians required to take any action to ensure that the physician to whom the patient is being referred will in fact provide the desired medical service.

The only exception is a limited provision in the advance directive laws - the laws governing living wills and powers of attorney for health care. Under the current law for advance directives, a physician is granted legal immunity for failing to comply with a living will, a power of attorney for health care, or the decision of a health care agent if the physician who refuses to comply makes a "good faith attempt to transfer" the patient to "another physician who will comply" with the directive.

AB 67 has limited application to advance directives. A living will is very narrow in scope and can only be used to refuse "life-sustaining procedures" or "feeding tubes" for a patient in a "terminal condition" or in a "persistent vegetative state". Since AB 67 does not deal with life-sustaining procedures, and there is an explicit exception in AB 67 for an incapacitated person in a terminal condition, AB 67 would only apply to a patient who is in a "persistent vegetative state" who has a living will directing the physician to starve or dehydrate the patient to death by withholding or withdrawing feeding tubes. A power of attorney for health care is much broader in scope, but AB 67 would only apply to the 8 specified protected activities and not to routine health care. For example, if the power of attorney for health care document directs the physician to perform an abortion on the patient or to starve or dehydrate a patient to death, then the physician can not only exercise his or her right to not be forced to participate in this willful destruction of life, the physician can also exercise his or her right to not be forced to find another physician "who will comply."

Physicians must review advance directives and give notice of intent to invoke conscience rights

The bill expressly provides that any physician, upon receiving a living will or a power of attorney for health care, is required to immediately review the document and, if the physician intends to invoke his or her conscience rights, to inform the person orally and in writing as soon as possible. This gives the person advance notice of the physician's concerns, if any, about the advance directive. If the person is not satisfied with the physician's response he or she can always seek out another physician.

AB 67 will not prevent any patient from having advance directives honored. If the patient is not satisfied with a particular physician's refusal to participate in any of the protected activities, then the patient can take his or her business to another physician who is willing to provide the desired service. If the issue arises when the patient is incapacitated, then the patient's legal representative can find another physician. The physician exercising his or her conscience rights would then allow the physician chosen by the patient or the patient's legal representative to immediately assume the care of the patient and assure the prompt transfer of the appropriate medical records of the patient to that physician.

Physician cannot force a patient to undergo any refused treatment

AB 67 does not abrogate the general rule that a physician cannot treat a patient without the patient's consent. AB 67 does not create a conscience right with respect to the refusal of medical treatment or life-sustaining procedures. If a patient refuses such treatment, then the physician cannot force the patient to undergo the refused medical treatment. Even in a situation covered by AB 67, such as use of a feeding tube for a patient in a "persistent vegetative state," a physician cannot force a feeding tube on the patient without the patient's consent. In this situation, AB 67 would give the physician a right to withdraw from the case and transfer responsibility for care of the patient to another physician chosen by a legal representative of the patient.

Euthanasia and assisted suicide

Assisted suicide and euthanasia are not legal in Wisconsin, so why does AB 67 cover these activities? Although every effort is being made to prevent assisted suicide or euthanasia from ever becoming legal in Wisconsin, a court could overturn our current laws prohibiting these acts, as surely as Roe v. Wade made our laws against abortion invalid. Should that occur, health care professionals and facilities that object to intentionally taking the lives of patients would be protected under AB 67.

Policy statements of national medical associations

Major medical associations support the conscience rights of their members. Excerpts of policy statements supporting the conscience rights of various health care professionals is attached to my testimony.

Conclusion

AB 67 recognizes that many health care professionals and facilities believe their mission is to treat and heal patients, not to engage in actions that deliberately destroy human life. This reasonable and commonsense legislation deserves to be enacted into law. Wisconsin Right to Life urges this committee to vote in favor of Assembly Bill 67 and protect the right of the health care providers in this state to practice their professions in a life-affirming manner without jeopardizing their means of livelihood.