Conscience Protection Act of 2021
This bill provides statutory authority for certain protections for health care providers that refuse to participate in abortions based on religious beliefs or other convictions. Health care providers include individual professionals, medical facilities, health insurance organizations, and social services providers that refer clients to health care services.
The federal government and entities that receive federal funding for health-related activities, including state and local governments, may not discriminate against a health care provider that refuses to be involved in, or provide coverage for, abortions. Currently, similar requirements apply to various related activities, including
The HHS Office for Civil Rights must investigate complaints of this kind of discrimination. Furthermore, HHS may terminate or reduce HHS funding for health-related activities if a person or entity fails to comply with nondiscrimination requirements.
Additionally, the Department of Justice or any entity adversely affected by such discrimination may bring a civil action to obtain appropriate relief. A plaintiff does not need to seek or exhaust administrative remedies before bringing the action. A plaintiff may also bring an action, including one for money damages, against a governmental entity. In many cases, principles of sovereign immunity shield states and some localities from these kinds of actions.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 401 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
1st Session
S. 401
To amend the Public Health Service Act to prohibit governmental
discrimination against health care providers that do not participate in
abortion.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 24, 2021
Mr. Lankford (for himself, Mr. Tillis, Mr. Scott of South Carolina, Mr.
Portman, Mr. Risch, Mr. Moran, Mr. Daines, Mrs. Fischer, Mr. Boozman,
Mr. Marshall, Mr. Cassidy, Mr. Cramer, Mrs. Hyde-Smith, Mr. Barrasso,
Mr. Thune, Mr. Hoeven, Mr. Sasse, Mr. Inhofe, Mrs. Blackburn, Mr.
Rounds, Ms. Lummis, Mr. Hawley, Mr. Scott of Florida, Mr. Lee, and Mr.
Hagerty) introduced the following bill; which was read twice and
referred to the Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To amend the Public Health Service Act to prohibit governmental
discrimination against health care providers that do not participate in
abortion.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Conscience Protection Act of 2021''.
SEC. 2. FINDINGS.
Congress finds as follows:
(1) Thomas Jefferson stated a conviction common to our
Nation's founders when he declared in 1809 that ``[n]o
provision in our Constitution ought to be dearer to man than
that which protects the rights of conscience against the
enterprises of the civil authority''.
(2) In 1973, the Supreme Court concluded that the
government must leave the abortion decision ``to the medical
judgment of the pregnant woman's attending physician'',
recognizing that a physician may choose not to participate in
abortion. Roe v. Wade, 410 U.S. 113, 164 (1973). The Court
cited with approval a policy that ``neither physician,
hospital, nor hospital personnel shall be required to perform
any act violative of personally-held moral principles'', 410
U.S. at 143 n. 38, and cited State laws upholding this
principle. Doe v. Bolton, 410 U.S. 179, 197-8 (1973).
(3) Religious diversity adds to the strength of our medical
field, and no doctor should have to choose between giving up
their faith or moral convictions and abandoning a vital medical
mission. Congress' enactments to protect this right of
conscience in health care include the Church amendments (42
U.S.C. 300a-7), the Coats/Snowe amendment (42 U.S.C. 238n), and
the Weldon amendment approved by Congresses and Presidents of
both parties every year since 2004 (including in section 507(d)
of division A of the Further Consolidated Appropriations Act,
2020 (Public Law 116-94; 133 Stat. 2534, 2607)).
(4) Courts have declined to find that these laws provide a
``private right of action'' thereby leaving victims of
discrimination unable to defend their conscience rights in
court, while at the same time administrative enforcement by the
Office for Civil Rights of the Department of Health and Human
Services has been inconsistent, at times allowing cases to
languish for years without resolution.
(5) Defying the Weldon amendment, California's Department
of Managed Health Care has mandated coverage for elective
abortions in all health plans under its jurisdiction. Other
States such as New York, Illinois, and Washington have taken or
considered similar action, and some States may go farther to
require all physicians and hospitals to provide or facilitate
abortions. On June 21, 2016, the Office for Civil Rights of the
Department of Health and Human Services under the Obama
Administration concluded a nearly 2-year investigation of this
matter by determining that California's decision to require
insurance plans under the California Department for Managed
Health Care authority to cover abortion services did not
violate the Weldon amendment. At least 28,000 individuals and
families subsequently lost abortion-free health plans as a
result of this mandate.
(6) On January 24, 2020, the Office for Civil Rights of the
Department of Health and Human Services disavowed its prior
findings and issued a notice of violation of the Weldon
amendment to California. After the State's continued
noncompliance with the Weldon amendment, the Centers for
Medicare & Medicaid Services, on December 16, 2020, announced
the disallowance of $200,000,000 per quarter in Federal funds
to California beginning in the first quarter of 2021. Unless
the Biden Administration provides effective and continuing
enforcement against California and other States, individuals
will continue to be coerced contrary to law into choosing
between violating their consciences or forgoing health care
coverage for themselves, their employees, or their families.
(7) On May 21, 2019, the Secretary of Health and Human
Services issued a final conscience rule that implements
approximately 25 Federal conscience protection provisions and
provides mechanisms to enforce protections enacted by Congress
to ensure that the government and government-funded entities
are not unlawfully discriminating against individuals, health
care providers, or health care entities. Despite this
regulation providing for enforcement of laws passed by
Congress, a Federal district court vacated the rule. Now,
litigation is pending before the United States Court of Appeals
for the Second Circuit where 78 members of Congress have filed
a brief in support of the rule, as well as the United States
Court of Appeals for the Ninth Circuit. Litigation in both
Circuits have been halted because the Biden Administration has
indicated its intent to revisit the rule.
(8) The vast majority of medical professionals do not
perform abortions, with up to 86 percent of obstetricians/
gynecologists unwilling to provide them (Obstetrics &
Gynecology, Sept. 2011) and the great majority of hospitals
choosing to do so only in rare cases or not at all.
(9) A health care provider's decision not to participate in
an abortion, like Congress' decision not to fund most
abortions, erects no barrier to those seeking to perform or
undergo abortions but leaves each party free to act as he or
she wishes.
(10) Such protection poses no conflict with other Federal
laws, such as the law requiring stabilizing treatment for a
pregnant woman and her unborn child when either needs emergency
care (Emergency Medical Treatment and Active Labor Act). As
previous Administrations have said, these areas of law have
operated side by side for many years and both should be fully
enforced (76 Fed. Reg. 9968-77 (2011) at 9973).
(11) Reaffirming longstanding Federal policy on conscience
rights and providing a right of action in cases where it is
violated allows longstanding and widely supported Federal laws
to work as intended.
SEC. 3. PROHIBITING DISCRIMINATION AGAINST HEALTH CARE PROVIDERS THAT
DO NOT PARTICIPATE IN ABORTION.
Title II of the Public Health Service Act (42 U.S.C. 202 et seq.)
is amended by inserting after section 245 the following:
``SEC. 245A. PROHIBITING DISCRIMINATION AGAINST HEALTH CARE PROVIDERS
THAT DO NOT PARTICIPATE IN ABORTION.
``(a) In General.--Notwithstanding any other law, the Federal
Government, and any person or entity that receives Federal financial
assistance, including any State or local government, may not penalize,
retaliate against, or otherwise discriminate against a health care
provider on the basis that the provider does not or declines to--
``(1) perform, refer for, pay for, or otherwise participate
in abortion;
``(2) provide or sponsor abortion coverage; or
``(3) facilitate or make arrangements for any of the
activities specified in this subsection.
``(b) Rule of Construction.--Nothing in this section shall be
construed--
``(1) to prevent any health care provider from voluntarily
electing to participate in abortions or abortion referrals
where not prohibited by any other law;
``(2) to prevent any health care provider from voluntarily
electing to provide or sponsor abortion coverage or health
benefits coverage that includes abortion where not prohibited
by any other law;
``(3) to prevent an accrediting agency, the Federal
Government, or a State or local government from establishing
standards of medical competency applicable only to those who
have knowingly, voluntarily, and specifically elected to
perform abortions, or from enforcing contractual obligations
applicable only to those who, as part of such contract,
knowingly, voluntarily, and specifically elect to provide
abortions;
``(4) to affect, or be affected by, section 1867 of the
Social Security Act (42 U.S.C. 1395dd, commonly referred to as
the `Emergency Medical Treatment and Active Labor Act'); or
``(5) to supersede any law enacted by any State for the
purpose of regulating insurance, except as specified in
subsection (a).
``(c) Administration.--The Secretary--
``(1) may issue regulations under--
``(A) this section;
``(B) the Religious Freedom Restoration Act of 1993
(42 U.S.C. 2000bb et seq.), with respect to any program
or activity funded, administered, or conducted by the
Department of Health and Human Services;
``(C) any of subsections (b) through (e) of section
401 of the Health Programs Extensions Act of 1973 (42
U.S.C. 300a-7) regarding an objection based on a
religious belief or moral conviction; and
``(D) any other law protecting the exercise of
conscience or religious freedom under programs or
activities funded, administered, or conducted by the
Department of Health and Human Services, including any
laws listed under the final rule issued by the
Secretary of Health and Human Services titled
`Protecting Statutory Conscience Rights in Health Care;
Delegations of Authority' (84 Fed. Reg. 23170; May 21,
2019);
``(2) shall designate the Director of the Office for Civil
Rights of the Department of Health and Human Services--
``(A) to receive complaints alleging a violation of
any provision of this section or any provision of law
referred to or listed under paragraph (1); and
``(B) to promptly investigate such complaints,
issue findings, and require corrective action in cases
of such a violation; and
``(3) shall, as permitted under law (including the
Constitution of the United States), induce compliance of a
person or entity, including a State or local government,
refusing to comply with a provision of this section, or any
provision of law referred to or listed under paragraph (1), by
terminating, in whole or in part, any Federal financial
assistance provided by the Secretary to such person or entity.
``(d) Definitions.--For purposes of this section:
``(1) Federal financial assistance.--The term `Federal
financial assistance' means Federal payments to cover the cost
of health care services or benefits, or other Federal payments,
grants, or loans to promote or otherwise facilitate health-
related activities.
``(2) Health care provider.--The term `health care
provider' includes--
``(A) an individual physician, health care
assistant, nurse, pharmacist, health researcher, or
other health care personnel;
``(B) a hospital, laboratory, pharmacy, health
system, or other health care or medical research
facility or organization (including a party to a
proposed merger or other collaborative arrangement
relating to health services, and an entity resulting
therefrom);
``(C) a provider-sponsored organization, an
accountable care organization, or a health maintenance
organization;
``(D) a social services provider that provides or
authorizes referrals for health care services;
``(E) a program of training or education in the
health professions or medical research, a participant
in such a program, or any individual applying or
otherwise aspiring to participate in such a program;
``(F) an issuer of health insurance coverage or of
a health plan; or
``(G) a health care sharing ministry;
``(H) a health insurance plan, including group,
individual, or student health plans, or a sponsor or
administrator thereof; or
``(I) any other health care organization, program,
facility, or plan.
``(3) State or local government.--The term `State or local
government' includes every agency and other governmental unit
and subdivision of a State or local government, if such State
or local government, or any agency or governmental unit or
subdivision thereof, receives Federal financial assistance.
``SEC. 245B. CIVIL ACTION FOR CERTAIN VIOLATIONS.
``(a) In General.--A qualified party may, in a civil action, obtain
appropriate relief with regard to a designated violation.
``(b) Definitions.--For purposes of this section:
``(1) Qualified party.--The term `qualified party' means--
``(A) the Attorney General of the United States; or
``(B) any person or entity adversely affected by
the designated violation without regard to whether such
person or entity is a health care provider.
``(2) Designated violation.--The term `designated
violation' means an actual or threatened violation of section
245A or of any other provision of law referred to or listed
under section 245A(c)(1).
``(c) Administrative Remedies Not Required.--An action under this
section may be commenced, and relief may be granted, without regard to
whether the party commencing the action has sought or exhausted any
available administrative remedies.
``(d) Defendants in Actions Under This Section May Include
Governmental Entities as Well as Others.--
``(1) In general.--An action under this section may be
maintained against any person or entity receiving Federal
financial assistance, including a State governmental entity.
Relief in an action under this section may include money
damages even if the defendant is a governmental entity.
``(2) Definition.--For the purposes of this subsection, the
term `State governmental entity' means a State, a local
government within a State, and any agency or other governmental
unit or subdivision of a State, or of such a local government.
``(e) Nature of Relief.--In an action under this section, the court
shall grant--
``(1) all appropriate relief, including injunctive relief,
declaratory relief, and compensatory damages to prevent the
occurrence, continuance, or repetition of the designated
violation and to compensate for losses resulting from the
designated violation; and
``(2) to a prevailing plaintiff, reasonable attorneys' fees
and litigation costs.''.
<all>
Introduced in Senate
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
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