If Hobby Lobby Wins, We All Lose

by Dr. Patricia Mayer, Bioethics Program Alumna (2009)

Late last month, the US Supreme Court heard oral arguments in the case of Sebelius v. Hobby Lobby Stores, Inc. The Supreme Court is currently considering whether Hobby Lobby, a privately owned chain of 640 arts and crafts stores, may deny its employees insurance coverage for things like birth control pills, emergency contraceptives and IUDs. Under the Affordable Care Act (ACA), employers are required to provide health care that covers all forms of contraception at no cost. However, the evangelical owners of Hobby Lobby argue that the company should not be required to provide contraceptive choices that violate the owner’s religious beliefs, particularly birth control methods that they believe “induce abortions”, such as the morning-after pill or the IUD.

Hobby Lobby’s owners are appealing to the Supreme Court for an exemption to the ACA contraceptive requirements on the basis of the Religious Freedom Restoration Act of 1993. That act stipulates the government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”.

Now Hobby Lobby’s owners are not asking for exemption from the obligation to provide insurance. In fact, they believe that providing heath insurance to their 14,000+ employees a moral obligation, but they do not want to pay for an insurance plan that covers certain types of contraceptives. They’ve even stated publicly that this obligation to provide their employees with health insurance is so strong it precludes them from discontinuing insurance coverage (instead of paying a new tax under the employer obligations of the ACA) even though this would then allow their employees to obtain insurance through the new health exchanges. Insurance plans available through the exchanges all provide complete contraceptive coverage in accordance with the ACA.

But should for-profit businesses be exempt from the Affordable Care Act’s contraception mandate? Do these companies have the same rights of religious freedom as individuals under the Religious Freedom Restoration Act?

I believe it would be wrong for the Supreme Court to grant Hobby Lobby’s request for an exemption. A private for-profit company, even one with religiously devout owners, should not dictate which legal, available, medical treatments an employee may receive by contradicting a federal law that represents a national decision – though not a consensus. While the Supreme Court has allowed exemptions to the contraceptive mandate of the ACA, they are few and highly specific, such as church employers. Even religiously-owned health care institutions (such as Catholic hospitals) have not been granted this exemption.

To grant such an exemption would represent unjust discrimination against a group of employees based on morally irrelevant factors such as youth, gender, and reproductive capability. The ACA clearly stipulates particular health care services must be provided. So it is not for a group of individuals (such as the family that owns Hobby Lobby), by way of a for-profit nationwide corporate employer, to deny its employees those services.

It is also not for the Supreme Court to damage the integrity of the ACA by granting such exemptions.

The owners of Hobby Lobby are free to make business decisions in accordance with their faith (such as closing on Sundays). But they are not free to impose their beliefs on their employees by seeking to control their personal health care choices.

Hobby Lobby has a viable option for avoiding involvement with contraceptive choices: by getting out of the health insurance business. Hobby Lobby could drop its employee insurance coverage altogether and pay the modest $2,000 per person yearly tax incurred by doing so. Employees could then obtain their own insurance through the exchanges. Hobby Lobby’s attorney points out this would cost the corporation the current tax breaks it receives from providing insurance and might also force the company to pay higher wages to attract employees willing to buy their own insurance. These statements may be true, but they are also irrelevant.

In a pluralistic society, we tolerate a variety of beliefs without allowing persons to impose those beliefs on others. If the Supreme Court agrees with Hobby Lobby, why would other for-profit corporations not follow suit with other objections? What would prevent corporations from declining coverage for other services based on “religious objections”? What if corporations want exemptions from covering HIV treatment based on religious objections to homosexuality or exemptions from treating Trichinosis on the basis that it is immoral to eat pork?

No corporation should make health care decisions for its employees. Hobby Lobby should abide by the provisions of the ACA, or get out of the way of its employees by paying the “penalty” tax, increasing wages if it must, and allowing employees to select their own plans from the insurance exchanges.

[The contents of this blog are solely the responsibility of the author and do not represent the views of the Bioethics Program or Union Graduate College.]

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Would Marlise Munoz’s Fetus Have Survived? Should It Have?

This post is part of The Bioethics Program’s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, in reverse chronological order, click here.

by Michelle N. Meyer, J.D., Ph.D.
Assistant Professor and Director of Bioethics Policy, Union Graduate College-Icahn School of Medicine at Mount Sinai School of Medicine Bioethics Program

Had the hospital not relented and removed the ventilator from Marlise Munoz’s body, could the Munoz fetus have been brought to term, or at least to viability? And if so, would the resulting child have experienced any temporary or permanent adverse health outcomes? Despite some overly confident commentary on both “sides” of this case suggesting a clear answer one way or the other—i.e., that there was no point in retaining the ventilator because the fetus could never be viable or was doomed to be born with catastrophic abnormalities; or, on the other hand, that but for the removal of the ventilator, the “unborn baby” was clearly on track to being born healthy—the truth is that we simply don’t know.

Before getting into the limited available data about fetal outcomes in these relatively rare cases, a bit of brush clearing. The New York Times juxtaposed reports about possible abnormalities in the Munoz fetus with the hospital’s stipulation about the fetus’s non-viability in ways that are likely to confuse, rather than clarify:

Lawyers for Ms. Muñoz’s husband, Erick Muñoz, said they were provided with medical records that showed the fetus was “distinctly abnormal” and suffered from hydrocephalus — an accumulation of fluid in the cavities of the brain — as well as a possible heart problem.

The hospital acknowledged in court documents that the fetus was not viable.

Whether intentionally or not, the nation’s newspaper of record implies — wrongly, I think — that the hospital conceded that the fetus would never be viable because of these reported abnormalities. In court, the hospital and Erick Munoz stipulated to a series of facts, including that Marlise was then 22 weeks pregnant and that “[a]t the time of this hearing, the fetus gestating inside Mrs. Munoz is not viable” (emphasis added). The hospital conceded nothing at all about any fetal abnormalities. In short, the Times, and many other commentors, have conflated “non-viability” as a function of gestational age with “non-viability” as a way of characterizing disabilities that are incompatible with life. As I read this stipulation, the hospital was not at all conceding that the fetus would never have been viable, had the ventilator remained in place. Rather, given the constitutional relevance of fetal viability, the hospital was merely conceding the banal scientific fact that the Munoz fetus was, at 22 weeks, not currently viable. There is nothing surprising in the least about the hospital’s “concession” about “viability” in the first sense, above: 22-week fetuses are generally not considered viable.

But what about the health of the Munoz fetus, which Erick’s lawyers, in the midst of arguing for the ventilator to be removed, reported showed signs of being “distinctly abnormal“? There’s little point in speculating about what are at this point (and are very likely to remain) vague, second-hand reports of private medical records, and still less about the possible causes of any abnormalities, which may have been genetic. Rather, let me make two observations about relying on reports (even if verified) of fetal “abnormalities” to argue for the removal of the ventilator.

Continue reading

Fetuses, Organs and Brain-Death

This guest post is part of The Bioethics Program‘s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, click here.

by Pablo de Lora, Ph.D.
School of Law, Universidad Autónoma de Madrid

One of the things that strikes me in the debate over whether a State has a sufficiently compelling interest in sustaining the physiological functions of a dead-brain pregnant woman in order to protect the life of the fetus, is that this very same rationale is not appealed to when we consider the many lives that are at stake when the deceased, or someone else — typically the next-of-kin — decides not to donate its organs after death. So, if the commitment of Texas — or any other State — with the protection of “human life” is sincere, if we can finally agree on that interest as being as compelling as to permit legislation restraining the woman’s right to refuse or terminate end-of-life care when she is pregnant, and their families’ right to bury or cremate their relative once it is pronounced legally dead, wouldn’t that rationale also legitimize the confiscation of dead-brain people in general in order to harvest their organs for the sake of saving the lives of others? I think coherence mandates so.

Actually, our reasons for such conscription in the case of organs’ harvesting are much more compelling than in the case of Marlise Muñoz if we take into account the fatal prognosis of the fetus, the experimental character of the continuation of pregnancy in a brain-dead woman, and the better expectations that we might nowadays have when we transplant organs.

[Cross-posted at Bill of Health]

The Munoz Tragedy: A First Step in the Right Direction

This guest post is part of The Bioethics Program‘s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, click here.

by Alexander M. Capron
University Professor and Scott H. Bice Chair in Healthcare Law, Policy and Ethics, University of Southern California

On November 26, 2013, Erick Munoz of Haltom City, Texas, found his wife Marlise unconscious on the floor of their kitchen; she had apparently suffered a pulmonary embolism. Mr. Munoz, a paramedic, succeeded in resuscitating his wife, who was rushed by ambulance to John Peter Smith (JPS) Hospital in nearby Fort Worth. Two days later, physicians concluded that Ms. Munoz met the criteria to be determined dead on neurological grounds.  Mr. Munoz requested that the medical interventions that had been used in the attempt to save his wife’s life be withdrawn, but the hospital refused on the ground that the Texas Advanced Directives Act (TADA) forbids the withdrawal of “life-sustaining treatment” when the patient is pregnant, and Ms. Munoz was carrying a fetus of 14 weeks gestation.

Mr. Munoz—along with Marlise’s parents, who supported his decision—pleaded with the hospital for more than a month, to no avail.  Finally, on January 14, 2014, his attorneys filed a petition asking the district court in Tarrant County to declare that the TADA does not apply to dead bodies or, if it does so apply, to rule that the statute’s prohibition on ceasing treatment during pregnancy constitutes an unconstitutional deprivation of equal protection or denial of privacy rights.  Ten days later, Presiding Judge R.H. Wallace ruled that the statute does not apply to Marlise Munoz and ordered the hospital to pronounce her dead and “remove the ventilator and all other ‘life-sustaining’ treatment” from her body no later than 5:00 pm on January 27th.

As an ethical matter, this is certainly a good outcome. It must have been painful not only for Ms. Munoz’s loved ones but for many of the healthcare professionals who continued to apply medical interventions against her wishes and past the point when they could provide any benefit for her. Now, the family can be allowed to grieve over and to bury her body, and to turn their attention to the needs of the Munoz’s young son, who has been cared for by his grandparents while his father was absorbed with the tragedy at JPS Hospital.

Continue reading

Marlise Munoz and Medical Decisions After Death

This guest post is part of The Bioethics Program‘s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, click here.

by David Orentlicher, MD, JD
Samuel R. Rosen Professor and Co-Director, Hall Center for Law and Health, Indiana University Robert H. McKinney School of Law

While the Texas state court probably rendered the right decision in the case of Marlise Munoz, the court and the hospital viewed the case through the wrong legal lens. As Thomas Mayo and others have argued, it did not make sense to invoke the Texas Advance Directives Act to impose treatment on Ms. Munoz for the benefit of her fetus. Nevertheless, other principles of law might justify treatment of some pregnant women—even after they are legally dead—for the benefit of their fetuses.

Ms. Munoz was 14 weeks pregnant when she collapsed at home. Subsequently, she was diagnosed as meeting the legal definition of death because of severe injury to her brain. As with some cases involving death from brain injury, intensive care could maintain Ms. Munoz’s heartbeat and her ability to gestate a fetus. The hospital believed it had a legal obligation to maintain Ms. Munoz’s cardiac function until her fetus was viable and could be delivered.

How should we analyze cases like that of Ms. Munoz? Continue reading

Introducing an Online Symposium on the Munoz and McMath Cases

by Michelle N. Meyer, J.D., Ph.D.
Assistant Professor of Bioethics and Director of Bioethics Policy, Union Graduate College–Icahn School of Medicine at Mount Sinai Bioethics Program

Two high-profile, rapidly evolving cases involving death by neurological criteria — better known as “brain death” — raise vexing and sometimes novel legal, ethical, and medical questions at the edges of life and death. The Bioethics Program is pleased to host this online symposium on these cases and the issues they raise. What follows is a brief overview of these cases and an explanation of the impetus for the symposium. You can view all symposium contributions in reverse chronological order here.

The Impetus for the Symposium

As Stanford Law professor Hank Greely observed, the Munoz and McMath cases have lead to an “unprecedented” amount of discussion by scholars and practitioners on a closed bioethics listserve run by Art Derse, of the Medical College of Wisconsin’s Center for Bioethics and Medical Humanities. In order to open up some of our often-spirited discussion to a broader readership, several members of the listserve have decided to recreate portions of it here. We hope you’ll help us continue the conversation in the comments.

Participants include:

  • Ryan Abbott, M.D., J.D., M.T.O.M.
    Associate Professor of Law, Southwestern Law School, and Visiting Assistant Professor of Medicine, David Geffen School of Medicine at UCLA
  • Alexander M. Capron, LL.B.
    University Professor, Scott H. Bice Chair in Healthcare Law, Policy and Ethics, Professor of Law and Medicine, Keck School of Medicine, Co-Director, Pacific Center for Health Policy and Ethics
  • Pablo de Lora, Ph.D.
    School of Law, Universidad Autónoma de Madrid
  • Michelle Meyer, J.D., Ph.D.
    Assistant Professor of Bioethics and Director of Bioethics Policy, Union Graduate College–Icahn School of Medicine at Mount Sinai Bioethics Program
  • David Orentlicher, M.D., J.D.
    Samuel R. Rosen Professor and Co-Director, Hall Center for Law and Health, Indiana University Robert H. McKinney School of Law
  • Thaddeus Mason Pope, J.D., Ph.D.
    Director, Health Law Institute, and Associate Professor of Law, Hamline University School of Law
  • Katherine Taylor, J.D., Ph.D.
    College of Nursing and Health Professions, Drexel University
  • Alan Jay Weisbard, J.D.
    Professor Emeritus, University of Wisconsin, and Executive Director, New Jersey Bioethics Commission (1987-90)
  • James Zisfein, M.D.
    Chief, Division of Neurology, and Chair, Ethics Committee, Lincoln Medical Center

Contributions will be posted on a rolling basis, and other participants may join later, so check this space for updates. To see all symposium entries, click here. Below the fold, some background on the Marlise Munoz and Jahi McMath cases. Continue reading

Stripped for Parts

by Theresa Spranger, Bioethics Program Alumna (MSBioethics 2012)

There was an article in the British Daily Mail recently about the possibility that eggs from aborted human females could be used for in vitro fertilization (IVF). The idea is that the ovaries of the aborted female would be harvested, and the eggs cultivated in a lab and then used in IVF treatments where a donor egg is required.  Ultimately, this would lead to the birth of a baby whose biological mother was never born.

I haven’t read any of the study results first hand, so I cannot speak to the scientific accuracy of the article.  Therefore, let’s discuss the issue purely as a hypothetical.

As I see it, there are several ethical issues involved with harvesting eggs from an aborted fetus:

  1.  How do you tell a child (or an adult person for that matter) that their biological mother was never born?  This would be incredibly difficult for a person to process.  Imagine the feeling of knowing that you were given a life to live because your mother died, that you were given a life she never got to experience.
  2. Who owns the genetic information contained in those eggs?  At this point in our society we do not grant the rights of person-hood to the unborn.  So, do we give the right of donation to the woman who had the abortion?  Is the body of the unborn child her property once it leaves her body?  Is it ok to use these eggs with permission from no one?  What kind of genetic testing will be done?  How will this information be used?  There really is no end to the questions and I don’t see how an adequate solution can be developed.  Keep in mind that to give donation rights to the mother alone would be an issue because it isn’t her genes alone she is donating; it is also the genes from the father.

Both 1 and 2 are major ethical hang-ups in my opinion, but what I would really like to talk about in this post is the dichotomy in our society regarding the issue of life.  Consider this scenario:

Jane is 19, in her first year of college, and discovers she is pregnant.  She decides this is not the time for her to have a child and she has an abortion.  Jane was carrying a little girl and at the abortion clinic they ask if she will donate the ovaries from that little girl.  Jane decides to do this; the nurse tells her all about how the eggs she donates will help a couple in need conceive a child.  Jane wants children someday, just not now, and she hates to see anyone who wants a child denied one.  Plus, it means that this whole ordeal wasn’t for nothing; it had a purpose, right?  She feels sort of empty and alone now that everything is done, maybe donating the ovaries will help bring her closure and make that empty feeling go away.

During this time, Tom and Mary are deciding what to do next.  They have tried everything imaginable to conceive and are left with two options: adoption or IVF with a donor embryo.  They consider the pros and cons.  Adoption can take years and there is always the chance that the mother will change her mind.  Can we deal with that they wonder?  They have been at this for 3 years already.  IVF on the other hand…it’s expensive sure, but they can start soon and maybe have a child by next year.

Tom and Mary go to the in vitro clinic and choose to use eggs from Jane’s aborted fetus.  The treatment takes and 9 months later they have a healthy baby girl.  Effectively making Jane, who thought she was too young to be a mother, a 20 year old grandmother.

The fact that we would consider using eggs from an aborted female highlights a real problem in our society: we are confused about life.  We seem to define life as that which is “wanted.”  This is illogical.  How can we justify valuing the eggs (and the life they can potentially produce) more than we value the human girl they came from?  Her little body was simply tossed aside after being stripped for parts.  On one end of the spectrum we are literally tossing life in the trash and on the other we are painstakingly and expensively creating it in a lab.

In our story, Jane wanted to donate the eggs to help a couple in need.  What if she were told about the amazing gift she could give a couple, as well as her unborn child, by choosing adoption?  Would Tom and Mary have been less excited to have this little girl?  Remember, they only decided against adoption because it is an arduous, bureaucratic nightmare, but isn’t there a way to fix that?  And wouldn’t it be well worth our time to help parents waiting for children more quickly find the children who need parents?

A world in which unfertilized eggs are worth more than a growing female fetus is a world confused and conflicted.  We create the very thing we have just destroyed.

I tire of the legal/illegal argument regarding abortion.  Most people, regardless of how they feel about the legality of the procedure, agree that abortion is not ideal and should, at the very least, be rare.  Let’s get creative and have a discussion about how to make abortions rare or even unnecessary.  By changing the conversation and making adoption a decision to be praised and honored in our society we could decrease the overall number of abortions and fix a bit of the confusion in our society about life.

[This blog entry was originally posted in a slightly edited form on Ms. Spranger’s blog on April 7, 2013. Its contents are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]