Why Don't We Have That? Part II
by Christopher Dodson
Executive Director
North Dakota Catholic Conference
September 2007

Last month, we looked at why North Dakota has not enacted certain laws that have either appeared in other states or, considering the state's culture and politics, are the type of laws a person would expect the state to have enacted. This month's column continues that survey of not enacted laws.

Coverage of unborn child in SCHIP

The state children's health insurance program helps provide coverage to children of parents who cannot afford insurance, but earn too much to qualify for Medicaid. By federal rule, the Bush administration has allowed states to include unborn children among the children who can be covered under the program. About eleven states have exercised this option.

The North Dakota legislature was one of the first to consider adopting this possibility, but declined doing so because of unknown costs. It turns out that insurance practices do not make distinctions among types of prenatal treatments and, at least at that time, did not have a way to define the unborn child as the patient for determining what was a legitimate medical procedure. The possibility of large costs for in-utero procedures, questions raised by insurers, and opposition to any expansion of SCHIP led to the bill's defeat.

Perhaps the state legislature could learn from the states that have since enacted this option. However, the Congress is currently working to repeal the Bush administration's rule on the issue. The window of opportunity could be passing.

Restriction on Title X

Title X is the federal government's family planning program. It funds various services, including contraception. Any entity receiving Title X funds must also provide abortion referral services. This requirement trumps any state restriction on such activity. Some of North Dakota's local public health units receive Title X funds and, therefore, must provide abortion referral services, even though North Dakota law prohibits funding referrals.

At times, North Dakota legislators have considered prohibiting any state agency from receiving Title X funding. However, while that might prevent involvement by state agencies, it would not prevent Title X funding from entering the state. If the state is not willing to accept Title X money, the federal government will give it to private entities. In other words, if the state refused the money, the federal government will give it to a less accountable, and more dangerous entity, such as Planned Parenthood. So long as Congress continues to give states little discretion as to how to use the money, North Dakota legislators have opted for what some might call the lesser of two evils.

Health Care Worker Conscience Protection

Actually, North Dakota has this, but it is not as comprehensive as we would like. A few existing laws protect health care workers from participating in a procedure that violates their consciences. For example, an employer cannot compel someone to participate in an abortion. Also, a health care provider does not need to comply with an instruction that violates the provider's moral or religious beliefs
if the instruction is contained in a health care directive or comes from a duly appointed health care agent. No explicit legal protection exists, however, if the instruction comes directly from the patient.

Efforts to fill the gaps have faced obstacles. Some legislators are hesitant to grant conscience protection unless it is for a specific procedure, rather than all procedures. Others feel that only certain professionals, such a physicians, should have protection, but not, for example, nurses or pharmacists. The North Dakota Catholic Conference has insisted that conscience protection is a right for everyone and should not be procedure or actor specific.

Mandated Abstinence Education

The greatest obstacle to mandating abstinence education in public schools is not opposition to abstinence education, but the state's deeply entrenched tradition of leaving most curriculum decisions to local school boards. There is also the risk that creating a statewide curriculum acceptable to all will water-down the good abstinence work being done in some districts.

In conclusion, while all of these ideas may sound good, there are sometimes good reasons why legislators have not made them into law. In other cases, there still exist good reasons for enacting them into law, but there are certain political, legal, and cultural barriers to overcome.