Bill Description: House Bill 308 would recognize that medical practitioners, health care institutions, and health care payers have the right not to participate in or pay for any medical procedure or service that violates the practitioner's, institution's, or payer's conscience.
Does it increase barriers to entry into the market? Examples include occupational licensure, the minimum wage, and restrictions on home businesses. Conversely, does it remove barriers to entry into the market?
In a free market, interactions between providers and consumers of goods and services would always be voluntary, with no one being compelled to serve another in violation of their beliefs or principles. Under our regulated economy, such freedom of conscience has been deprioritized, and providers are increasingly being forced to act contrary to their sincerely held principles.
House Bill 308 would create Chapter 13, Title 54, Idaho Code, which would be titled the "Medical Ethics Defense Act."
This new chapter would replace some existing but more limited protections for freedom of conscience found in Section 18-611, Idaho Code.
The bill provides legislative findings and purpose and says, "It is the purpose of this chapter to protect medical practitioners, health care institutions, and health care payers from discrimination, punishment, or retaliation as a result of any instance of conscientious medical objection."
The law would include definitions and provide protections against retaliation and discrimination for whistleblowers.
The central principle of the law would be found in Section 54-1304(1), which would say, "A medical practitioner, health care institution, or health care payer has the right not to participate in or pay for any medical procedure or service that violates the practitioner's, institution's, or payer's conscience."
Enforcement would be through civil remedies, with the provision that "any party aggrieved by any violation of this chapter may commence a civil action and shall be entitled, upon the finding of a violation, to recover three (3) times the practitioner's, institution's, or payer's actual damages sustained or twenty-five thousand dollars ($25,000), whichever is more, along with the costs of the action and reasonable attorney's fees."
While broadly positive, this law would include a concerning exception that says "nothing in this section shall be construed to override the requirement to provide emergency medical treatment to all patients as set forth in 42 U.S.C. 1395dd." It is always problematic when a bill incorporates changeable federal laws into Idaho statutes or rules, and especially so when compliance with a federal law is declared an exception to a state law designed to protect fundamental rights.
Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?
In addition to supporting the free market, House Bill 308 would recognize and protect a fundamental right to act according to one's conscience, even when engaged in business. Freedom of conscience and freedom of association are critical components of a free market and a free society that respects individual rights.
Unfortunately, these protections would be limited to medical practitioners, health care institutions, and health care payers. Perhaps, however, this bill could serve as a model for future efforts to more fully recognize and protect freedom of conscience for all market participants in Idaho.
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