Back in March, when Asa Hutchinson and several members of the Arkansas General Assembly were still collectively in the business of pretending like the COVID-19 pandemic in Arkansas was basically over, the Senate passed SB289, “To Create The Medical Ethics and Diversity Act.” This bill, introduced by Sen. Kim Hammer1 and signed into law as Act 462 by Gov. Hutchinson, was yet another attempt by the Arkansas legislature to discriminate against LGBTQ+ Arkansans, in this case by giving doctors and hospitals the ability to refuse to provide medical treatment based on moral, ethical, or religious objections.
It’s a funny thing, though, trying to write a law in 2021 that will codify bigotry while not immediately being struck down by federal courts. To pull that off, a legislator frequently has to write a bill broadly enough that it applies to more than just the group that he is trying to discriminate against.
Doing that, however, carries risk. What if, due to changing circumstances and the passage of a little time, your bill winds up being used to legally discriminate against the very Arkansans that the bill was originally designed to pander to? Having to explain to your base why you sponsored a law that lets them be treated as second-class citizens has to be a less-than-ideal outcome for a legislator, right?
So it was that Act 462 came into being.
It begins–as you might expect if you are familiar with the soft-pedaling of legalized discrimination–with high-flying rhetoric about America, vague statements about history, and a suggestion that the bill is in furtherance of Very Important Freedoms or some such nonsense.
From there, Act 462 defines “conscience” as “the religious, moral, or ethical beliefs or principles of a medical practitioner, healthcare institution, or healthcare payer.”2 Then, just so we are all aware of just how broadly Sen. Hammer, et al., wanted SB289 to apply, we get to the definitions. The two most important definitions for purposes of this post are “healthcare institution”3
and “healthcare service”4
Using these definitions, Act 462 (a) gives doctors, hospitals, and insurance companies the right to refuse to perform or pay for any “healthcare service that violates his, her, or its conscience;” (b) remove any criminal or civil liability for any doctor, hospital, or insurance company that refuses to perform or pay for a procedure that violates his/her/its conscience; and (c) gives any doctor who is “discriminated against” for refusing to perform a service that violates his or her conscience the right “to recover three times the amount of any damages incurred, including without limitation damages related to: the cost of the civil action and reasonable attorney’s fees,” with that recovery being at least $7,500 per violation, regardless of the actual damages.
Which, finally, brings us to the point of this post.
As we sit here, Arkansas’s hospitals and ICUs are at or near capacity across the state.5 Well over 90% of the people currently hospitalized with COVID-19 (or a variant thereof) are unvaccinated. Roughly 48% of Arkansans are completely unvaccinated, and approximately 30% of Arkansans have indicated that they simply will not get vaccinated.
All of those statistics are true despite the fact that doctors, hospitals, and healthcare providers have all stressed for months the importance of getting vaccinated.
At the same time, because hospital beds are near or at capacity, people are being strongly encouraged to postpone elective medical procedures, and some hospitals are unilaterally postponing them until COVID-19 rates drop.6 Patients are being sent to other states just to create space. There are concerns that some hospitals and ICUs will soon lack the space to treat common everyday occurrences such as car-wreck and gunshot victims.
In short, the rapid increase in COVID-19 cases and hospitalizations is quickly pushing Arkansas’s healthcare system to a breaking point.
Now, imagine that you are a doctor or a nurse or a hospital administrator or anyone else whose job is related to medical treatment of humans. You see what is going on. You know that this near-break-point situation is overwhelming due to people refusing to get a free, readily available vaccine.
In that situation, a doctor (or hospital) could very easily and logically decide that a person’s refusal to be vaccinated against COVID-19 is against the doctor’s (or hospital’s) moral or ethical beliefs, as the refusal puts other people in needless danger and creates a communal health risk that the doctor (or hospital) finds morally or ethically repugnant. Under Act 462, that doctor or hospital could legally refuse to provide any medical treatment to unvaccinated individuals who need to be hospitalized due to COVID-19-related symptoms.
Thus far, it does not appear that any doctors or other medical professionals or healthcare institutions have taken this drastic step. But, then again, the COVID-19 rates in Arkansas–and the hospitalizations that come from them–do not appear on track to be markedly better any time soon. There may quickly come a time where we face the healthcare system will collapse completely unless doctors and hospitals begin to refuse COVID-19 treatment to unvaccinated persons. Act 462 will make that decision completely legal.
Even if we don’t hit a point quite that drastic, we have seen repeatedly that people are only willing to put their lives on hold for so long. Eventually, people are going to want their elective surgeries. Postponed procedures that aren’t quite elective but also aren’t immediately pressing will become necessary. People will want assurance that, if they are in an accident, they’ll be able to receive medical treatment. When that time comes, the only way to free up the hospital/ICU space necessary for regular medical treatments to resume may be to stop treating unvaccinated Arkansas for COVID-19. Act 462 will allow that as well.
Certainly, a doctor or hospital that announced a “no unvaccinated COVID-19 patients” policy would draw the ire of the Mary Bentleys and Trent Garners and Gary Stubblefields of the world. So what? They made this bed when they passed SB289 to discriminate against others; they can lie in it when Act 462 winds up being used against the anti-vax supporters who keep showing up legislative committee meetings and crowing about how they staved off COVID-19 by eating horse dewormer.
To be clear, I thought Act 462 was terrible when it was introduced as SB289, and I think the idea that it might be used to discriminate against a different group of people than was originally intended is just as bad. I am never in favor of giving corporations or insurance companies the right to pick and choose who gets treatment. My position on that doesn’t change even though I think refusing to get vaccinated against COVID-19 simply because of something you read on Facebook or something Mary Bentley said is quite possibly the stupidest thing I have ever heard.
But that is the thing about proposing legislation based on which minority groups you personally don’t like: At best, you pull it off and brand yourself as a terrible human being; at worst, you’re still a terrible person, but you have also created a situation where your legislated bigotry might actually lead to the death of people who are overwhelmingly and loudly part of your own political party.
The sentence “threats to the right of conscience of…healthcare payers” might be the most ridiculous thing ever written. No one but a legislator believes in the “conscience” of health insurance companies, and including them in the paragraph after you talk about “millennia” of medical history is absurd.↩
“a public or private organization, corporation, partnership, sole proprietorship, association, agency, network, joint venture, or other entity involved in providing healthcare services, including without limitation: (a) a hospital; (b) a clinic; (c) a medical center; (d) an ambulatory surgical center; (e) a private physician’s office; (f) a pharmacy; (g) a nursing home; (h) a medical training facility; (i) an individual, association, corporation, or other entity attempting to establish a new healthcare institution or operating an existing healthcare institution; and (j) any other institution or location where healthcare services are provided to an individual.”↩
“medical care provided to a patient at any time over the entire course of treatment, including without limitation: (a) initial examination; (b) patient referral; (c) counseling or psychological therapy; (d) therapy; (e) testing; (f) research; (g) diagnosis or prognosis; (h) instruction; (i) dispensing or administering, or both, of any drug, medication, or device; (j) set up or performance of a surgery or other procedure; (k) recordkeeping and recordmaking procedures and notes related to treatment; and (l) other care or services provided by a medical practitioner or healthcare institution.”↩
Whether capacity issue has additional, structural causes is a fair question. But it’s outside the scope of this post and not relevant in this particular discussion.↩