Sec. 2. Findings

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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). 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)). 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.

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. 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. 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. 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.

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. 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). 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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