Sec. 2. Findings
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/bill/114/s/2927/is/section-2·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Congress finds as follows: 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 . 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). Congress’ enactments to protect this right of conscience in health care include the Church amendment of 1973 ( 42 U.S.C. 300a–7 ), the Coats/Snowe amendment of 1996 ( 42 U.S.C. 238n ), and the Hyde/Weldon amendment approved by Congresses and Presidents of both parties every year since 2004.
None of these laws explicitly provides a private right of action so victims of discrimination can defend their conscience rights in court, and administrative enforcement by the Department of Health and Human Services Office for Civil Rights has been lax, at times allowing cases to languish for years without resolution. Defying the Federal Hyde/Weldon amendment, California’s Department of Managed Health Care has mandated coverage for all elective abortions in all health plans under its jurisdiction.
Other States such as New York and Washington have taken or considered similar action, and some States may go further to require all physicians and hospitals to provide or facilitate abortions. Members of Congress have repeatedly questioned U.S. Health and Human Services Secretary Sylvia Burwell about California’s ongoing violation which began in August 2014. The Department of Health and Human Services has acknowledged California’s violations and indicated that the Department was taking them seriously and that the matter would be resolved expeditiously .
Despite numerous complaints and calls for prompt enforcement of the Hyde/Weldon amendment in California, however, the Department has failed to resolve the matter. The vast majority of medical professionals do not perform abortions, with 86 percent of ob/gyns unwilling to provide them in a recent study (Obstetrics & Gynecology, Sept. 2011) and the great majority of hospitals choosing to do so in rare cases or not at all. Therefore, a policy requiring all health care providers to be involved in abortion could seriously disrupt the health care system, reducing the number and diversity of providers available to serve the basic health needs of American women and men.
A health care provider’s decision not to participate in an abortion, like Congress’ decision not to fund most abortions, erects no new barrier to those seeking to perform or undergo abortions but leaves each party free to act as he or she wishes. Such protection poses no conflict with other Federal laws, such as the law requiring emergency stabilizing treatment for a pregnant woman and her unborn child when either is in distress (Emergency Medical Treatment and Active Labor Act).
As the Obama administration has 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). 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.
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- 410 U.S. 113
- 410 U.S. 179
- 42 USC 300a–7
- 76 FR 9968
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